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'^. 


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REPORTS 


OF, 


CASES 

ADJUDGED    IN    THE 

SUPERIOR    COURT 

OFT  H  E 

State   of  ConneSiicut. 

From  the   Year   1785,  t  o   M  a  y    1  ';■•  8B  \ 
w  I  t  H   s  o  M  £    ■ 

DETERMINATIONS 

IN     T  H  F^ 

SUPREME   COURT  OF   ERRORS. 


By  EPHRAIM  KIRBY,  Esquire. 


LITCHFIELD:   Printed  by  COLLIER  (^  ADAM, 

MjDCC^LXXxiX. 


5  H 


PREFACE. 

rH  E  uncertainty  and  contradiction  attending  the  ju-^ 
dicial  decijions  m  thisjlate^  have  long  been  fubjc^s  of 
complaint, — The  fource   of  this   complaint  is   eafly 
difcovered. — When  our  ancejiors  emigrated  here,  they  brought 
with  them  the  notions  of  jurifprudence  which  prevailed  intke 
country  from  whence  they  came. — The  riches^  luxury,  and  ex-^ 
tenfve  commerce  of  that  country,  contrajkd  with  the  equal 
dijiribution  of  property,  fmplicity  of  manners,  and  agricul-^ 
tural  habits  and  employments  of  this,    rendered  a  deviation 
from  the  Englifii  laws,  in  many  inflames,  highly  necefjary. 
This  was  ohferved — and  the  intricate  a7id  prolix  praUice  of 
the  Englifh  courts  was  rejeBed,  and  a  mode  of  praBice  more 
fimple,  and  better  accommodated  to  an  eafy  andfpeedy  admi-^ 

nijiration  of  jujlice,  adopted, -Our  courts  werejiill  in  a 

fate  of  embarrafj'ment,  fenfible  that  the  common  law  of  Eng^ 
land,  "  though  a  highly  improved  fyjlem,'*  was  not  fully  ap- 
plicable to  our  fituation ;  but  no  provifion  being  made  to 
preferve  and  publifh  proper  hiflories  of  their  adjudications, 
every  attempt  of  the  Judges,  to  run  the  line  oj  difinUion, 
between  what  was  applicable  and  what  not,  proved  abortive  : 
For  the  principles  of  their  decifons  were  foon  forgot,  or  mif 
under  flood,  or  erroneoufy  reported  from  memory, — Hence 
arofe  a  confufion  in  the  determinations  of  our  courts  ; — the 
rules  of  property  became  uncertain,  and  litigation  propor^ 
tiombly  encreafed_» 

In  this  fituation,  fome  legifative  exertion  was  found  ne- 
ceffary  ;  and  in  the  year  1785  an  aB  pafjed^  requiring  the 
Judges  of  the  Superior  Court,  to  render  written  reafcns  for 
their  decifons,  in  cafes  where  the  pleadings  clo/ed  in  an  iffue 
at  law. — This  was  a  great  advance  toward  improvement ; 
ftill  it  lejt  the  bufmefl  of  reformation  but  half  performed  : — - 
For  the  arguments  of  the  Judges,  without  a  hijlory  of  the 
whole  cafe,  would  not  always  be  intelligible  ;  and  they  would 

become 


iv  PREFACE. 

hecome  known  to  but  few  perfons ;  a^id  being  written  on  loo  ft 
paperfy  were  expofed  to  be  miflaidy  and  Joon fink  into  total 
ohlivion. — Befides,  very  many  important  matters  are  deter^ 
mined  on  motions  of  various  kinds,  where  no  written  reafons 
are  render  ed,  and  fo  are  liable  to  be  forever  lojl, 

Iknce  it  became  obvious  to  every  one,  that  fkould  kijloriei 
of  important  caufcs  be  carefully  taken  and  publified,  in  which 
the  whole  procefs  fkould  appear,  flowing  the  true  grounds 
and  principles  cj  the  decifion,  it  would  in  time  produce  ci 
permanent  fyfem  of  common  law. — But  the  court  being  am'- 
buhtory  through  theJlatCy  the  undertaking  would  be  attend^ 
ed  with  confiderable  expence  and  interruption  of  other  huf-* 
nef,  without  any  profpeB  of  private  advantage;  therefore^ 
no  gentleman  of  the  profejfon  feemed  willing  to  make  fo  great 
a  facrifice, — /  had  entered  upon  this  bufinefs  in  a  partial 
manner,  for  private  ufe  ;  which  came  to  the  knowledge  of  fe^ 
veral  gentlemen  of  diftinUion, — I  was  urged  to  purjue  it 
more  extenfively  ;—and  being  perfuaded  that  an  attempt  of 
the  kind  (however  imperfeB)  might  be  made  in  fome  degree 
fubfervient  to  the  great  ohjeB,  I  compiled  the  Volume  of 
Reports  which  is  now  prefented  to  the  public, — Could  any 
effort  of  mine  induce  government  to  provide  for  the  profecu^ 
iion  of  fo  neceffary  a  zuork  by  a  more  able  hand,  my  wifhes 
would  be  gratified,  and  my  labour  in  acGomplifiing  this, 
amply  repaid. 

In  thefe  Reports,  I. have  endeavoured  to  throw  the  matter 
into  as  fmall  a  compafs  as  was  confijient  with  a  right  under" 
(landing  of  the  cafe  : — Therefore,  I  have  not  fated  the  plead- 
ings or  arguments  of  counftl  further  than  was  neceffary  to 
bring  up  the  points  relied  on,  except  fom,efew  inflances  which 
feemed  to  require  a  more  lejigthy  detail  of  argument. — As 
the  work  is  defigned  for  general  ufe  in  this  fate,  I  have 
avoided  technical  terms  and  phrafes  as  much  as  pcffible,  that 
it  might  be  intelligible  to  all  claffes  of  men. — Some  cafes  art 
reported  zohich  are  merely  local,  and  have  reference  to  the 
peculiar  praHice  of  this  fate ;  thefe  may  appear  unimpor- 
tant to  readers  in  other  fates ;  but  they  were  neceffary  to 
the  great  object  of  the  work. 

lam' 


An 


ALPHABETICAL    TABLE 


OF   THE 


NAMES   OF    THE   CASE  So 


A.  Page 

ADAMS  V.  Cleaveland  38 

Adams  v,  Kellogg  195 

and  438 

Ainfworth,  &c    v.  Allen  145 

Allen,  &c.  V.  Hoyt  221 

Anonimous  gg 

Apthrop  V.  Backus  407 

A^yery  v.  Wetmore  48 

Avery  v.  Kinfman  354 


3^1 

421 

373 
368 

232 


B. 
Babcock  V.  Janes 
Backus  V.  Cleaveland 
Backus,  &c,  V.  Dennifon 
Bacon  v.  Fitch 
Bacon  v.  Taylor 
Barker,  &;c.  v.  Wilford 

Barnard  V.  Norton  193 

Beach  v.  Adminillrators  of  Hall 

235 

Beekman,  &c.  v,  Tomlinfon  291 

Beebe  v.  Trafford  215 

Beers  V.  Strong  13 
Beers,  &c.  v.  Strong  and  Wife  19 

Benedid  v.  Brosvnfon  70 

Bill  V.  Scott  62 

Bellows  V.  Williams,  &c.  166 

Biihop  V.  Drake,  &c.  378 

Boftwick  V.  Hawley  290 

Boftwick  V.  Nickelfon  65 

Bradley,  &c.  v.  Camp  77 

Bradley  v   Hitchcock  231 

Bradley,  &c.  v.  Blodget  22 

Brinley  v.  Avery  25 
Broom,  &c.  v.  Jennings,  &c.  392 

Brown  V.  Lord  209 

Buel  V.  Metcalf  40 

Bulkley  v.  Elderkin  &  BiiTel  188 

Bulkley  V.  Richards  203 

Bunce  v.  Bunce  137 

Burrows  v.  Fitch  113 

Butler  V,  Scovel  352 


C.  Page 

Carter  V.Bellamy  291 

Cafe  v.  Cafe  284 

Champion  v.  Mumford,  &c.  i/d 
Chapman  v.  Alien  39a 

Chapman  &  Griggs  v.  Wells  135 
Chappel,  &c.  v.  Brewfter  175 
Church  V.  Bellamy  289 

Church  V.  the  inhabitants  of  No/^ 
wich  140 

Church  V.  Thomfon  98 

Clap  V.  Lockwood,  &c.  100 

Clark  V.  County  of  Litchfield  3 18 
Clark  V.  Mofes  143 

Clark  V.  Bray  237 

Coit  V.  Bull  '  14^ 

Coit  V.  Fitch  254' 

Coit  V.  Geer  269 

Comes  V.  Prior  395 

Cooley  V.  Sanford  103 


Dauchy  v.  Smith,  &c, 
Deming  v.  Norton 
Deming  v.  Marfii 
Denniion  v,  Raymond 
Dorr  V.  Chapman 

E. 
Eldridge  v.  Lane,  &c. 
Eno  V    Cornifh 
Eno  V.  Roberts 


Fanning.  &c.  v.  Coit 
Fellows  V.  Carpenter 
Fitch  V.  Hall 
Fitch  V.  Huntington 
Fitch  V.  Hide,,&c, 
Fitch  V    Lovelaad 
Fleming  v.  Reynolds 
Frifbie  v,  Butler 


ig6 

397 
424 

274- 
205 


7S 
296 

393 


423 

3'^4 

iB 

38 
258 
380 
387 
213 


PRE    FA     C    E.  V 

/  am  fenfihle  that  this  produBion  i$  introdnqd  to  the 
world  under  circumjlanccs  very  unfavourable  to  its  reputa^ 
tion. — But  however  diffident  I  might  be,  under  other  cir^ 
cumJlanceSy  I  feel  an  honejl  conjidence  in  this  attempt  to  ad- 
vance the  common  inter  eji  of  my  fellow -.citizens ; — and  that, 
fo  obvious  are  the  difficulties  which  mujl  occur  in  almofi  every 
Jiage  of  the  bufiiiefs,  that  to  detail  them  in  a  prface  would 
be  offering  an  infult  to  the  underjianding  of  my  readers,— 
The  candid  and  generous,  if  they  read  thefe  Reports,  will 
doubtlefs  find  frequent  occajion  to  draw  into  exercife  thofs 
excellent  virtues ;  and  as  to  readers  of  an  oppofite  difpofition, 
I  have  neither  wifhes  or  fears  concerning  them. — If  any  one 
fhould  experience  difagreeable  fcnfations,  from  the  inelegance 
of  this  performance,  let  him  reft  affured  he  cannot  more 
Jincerely  regret  its  faults  than  I  do. 


HAVING  perufed  Mr.  Kirby's  *' Reports  of 
"  Cafes  adjudged  in  the  Superior  Court,  from 
''  the  Year  1785  to  May,  1788,"  it  appears  to  us 
that  the  Cafes  are  truly  reported. 

RICHARD  LAW, 
ELIPHALE T  DJER, 
ROGER  SHERMAN, 
WILLIAM  PITKIN, 
OLIVER  ELLSWORTH. 


NAMES   OF   THE    CASES, 


Page 
401 


Gallup  V.  Dennilon 

Gilbert  v.  Marcy 

Gilbert  v.  Rider 

Gold's  Cafe  100 

Grant  v.  Jackfon  90 

Guftin  V.  Brattle  299 

Hall  V.  Crandall  402 

Halfey  v.  Mott  277 

Hamlin  v.  Fitch  174 

Hamlin  v.  Fitck  260 

Hart  V.  Bull  396 

Hart  V.  Smith  127 

Harris  and  Wife  v.  Thomas  267 

Hawley  V.  Caftle,  &c.  218 

Hen  (haw  v.  Coe,  &c.  50 

Hinman,  &c.  v.  Stiles  10 

Hobby  V.  Finch  &  Knapp  14 

Holmes  V.  Brown  151 
Horsfoid  &  Agard  v.  Wright  3 
Hubbard, &:c.  v.  Manning, &:c.  256 

Hungerford  v.  Thomfon  393 

Huntington  v.  Jones  '3^Tj 
Hunrington,  &c.  v.  Carpenter  45 

Huntington  v.  Champlin  166 


Jarvis  v.  Rathburn  220 

John-fon  v.  Foot,  &c.        „  283 

K. 

Kellogg  V.  Williams  316 

Kibbe  V.  Kibbe  1 19 

Kil bourn  V.  Waterous,&c.  424 

Kimball  v.  Cady  41 

Kiflam,  &c.  V.  Burral  326 

L. 

Lankton  v.  Scott  356 

Lawrence  v.  Kingman  6 

Leavenfworth  v.  Phelps  7 

Lothrop  V.  Bennet  185 

M. 

MClellan  V.  Morris  \^^ 

M  Curdy  v.  Mather  273 
A/1*Donald,  &c.  v.  Fifher,  &C.339 

M  Donald    ^.  V.  Lcacl)  72 

Mack  V.  Parfons,  &c.  155 


Marks  v.  Johnfon 

Marfti  V.  Steele 

May  and  Wife  v.  Webb 

Mead  v.  Coggfliall 

Merrils  v.  Adams 

Mills  V.  Bifhop 

Mills  V,  Bifhop&  Wetmore 

Minor  v.  Cook  .^^ 

Minor  v.  Erving's  Executors  158 

Mortimer  v.  Caldwell,  &c.        53 

Moulthropv.  Bennet  351 

Mumford  v.  Avery  163 

Mumford  v.  Wright,  &c.        297 


Page  228 

454 
286 

17 
247 

89 

4 

^^7 


N. 
Nichols  V.  HiMyer 
Nicole  V.  Mumford 
Northrop  V.  Bruih,  &c. 
Not!  V.  Welles 
Noyce  v.  Huntington 


Page  V.  Camp 
Palmer  v.  Seymour 
Parker  v.  Avery 
Parker  v.  Avery 
Parks  V,  Morgan 
Peck  V.  Goodwin 
Peck  V.  Jones 
PetEis,  &c.  V.  Warren 
Pettis  V.  Dixon 
Phelps  V.  Sanford 
Phelps  V.  Phelps 
Phelps  V.  Swan,  &c, 
Phenix  v.  Prindle 
Place  V.  Lyon 
Powers  V.  LilHe 
Punderibn  v.  Shaw 

R. 

Randall,  &c,  v.  York,  &c. 
Richards  v.  Way 
Rogers  v.  H-^mftpd,  &c. 
Rofe  &  Ruflel  V.  Brown 
Ruft  V.  Wilion 


219 

270 

108 

12 

282 


Olcott,  &c.  V.  Graham,  &Co    246 


7 

339 
353 
353 
159 

64 

289 
426 
179 
343 
3 '4 
47.8 
207 
404 
160 
250 


3H 
269 

44 
293 
364 


Scott  and  Wife,  in  Error        36^^ 


NAMES    OF    THE    CASES. 


Page 


Scott  V.  Scou 
Scott  V.  Scripture 
Sholes  V.  Stoddard 
Snow,  &c.  V.  Antrim 
South-Farms  v.  Beckwith 
State  V.  Eiios 
State  V.  Stuifon 
State  V.  Green 
Stare  V.  Lockwood 
State  V.  Burrows 
State  V.  Phelps 
State  V.  Thomfon 
Sterne  v.  Spalding 
Stoddard  v.  Bird 
Storer  v.  Hinkley,  &C. 
Storrs  V,  Wetmore 
Strong's  Cafe 
Stronag  V.  Barlow 
Suffrein,  &c.  v.  Frindle 
Sumner  v.  Lymao 
Swan  V.  Butler 
Symfbury  Cafe 


Taylor,  &c.  v.  Geary,  Sec. 
Thomfon  v.  Church 


:?70 

363 
163 

174 

9' 

21 

52 

^7 
106 
259 

282 

345 

17 

65 

147 
203 

34.- 
36 
112 
241 
276 
444 


313 
212 


Thomfon  v.  Wales,  Sec.    Page  55 
Tw^'dy  V.  Brufh  I3 

Tyler  v.  Cook  591 

W 
Waddell  v.  Shaw,  &c. 
Waldo  V.  Mumford 
Wadfworth  v.  Sanford 
Webb  V.  May  and  Wife 
Welles  and  Wife,  v.  Oicott 
Welles  V.  Fowler 
Wetmore  v.  Woodbridge 
Whiting  &  Frifbie  v.  Jewell 
Wickham  v.  Waterman 
Wight  V.  Mott,  &e. 
Wilford,  &c.  V.  Grant 
Williams  v.  Whitmore 
Williams  v.  httd^ 
Williams  v.  Miller  &  Joyce 
Wilfon,  Sec.  V.  Hinkley,  &c. 
Witter  V-  Brew  iter 
Woodbridge  v.  Raymond 
WoodrufFv.  Whitilefey 
Wooller,  &c.  V.  Parfons 
Woofter  V.  Parfons 
Wooiter  V.  Simons 


280 

456 
251 
118 
236 

164 
I 

273 

114 

249 

J  89 

422 

279 
60 

27 
no 

39 


C    AS    E    S 

ARGUED  AND  DETERMINED 

I  N    T  H  E 

SUPERIOR  COURT 

OF    THE 

STATE  o?  CONNECTICUT.     ■ 


County  o/'LiTCHFi ELD,  Feb.  7>r^,  lyS^*. 

Richard  Law,  Efq.  Chief  Jujlicey 
Eliphalet  Dyer,  jE/^. 
Roger  Sherman,  Efq-,  v   -r  j 

William  Pitkin,  'Efq.        f  Judges. 
Oliver  Ellsworth,  Efq, 


Whiting  and  Frisbie  againjl  Jewel.' 

IN  this  cafe  depofitions  were  offered  by  the  Wheadepe- 
defendant^  which  were  taken  in  the  com-  uken*out  df 
monwealth  of  Maffachufetts,  more  than  twenty  tWsftate,no. 
miles  diftant  from  the  plaintiffs'  refidence,  but  giv"n?o'lhc 
within  ten  miles  of  their  known  agent  and  at-  adverfc  par- 
torney,  neither  of  them  being  notified  or  pre-  Sovn^agcic 
fent  at  the  caption.  °^  vkhTn^-^'c* 

It  was  objeded,  that  thefe  depofitions  were  miies  of  the 
not  fo  taken  as  to  come  within  the  fpirit  of  the  "^^1°"'  l'^^ 
Itatute  allowing  affidavits  to  be  made  out  of  himfeif  lives 
court; — which  is,  that,  •*  Forafmuch  as  it  is  Satef&w 
"  neceffary  that  witneffes  in  civil  caufes  be  aknovnattor 
**  fworn  out  of  court,  when  by  reafon  of  their  "n theftlfer 
**  going  to  fea,  living  more  than  twenty  miles  Keshan  be 

"  diftant 


County  of.  Litchfield,  Feb.  Term. 

"  diftant  from  the  place  where  the  caufe  is  to 

"  be  tried,   age,   ficknefs  or  bodily   infirmity, 

V/hiting    "  they  are  rendered  incapable  of  travel,  and  of 

atid^       if  appearing  at  court. To  the  intent,  there- 

T'^r!^      "fore,  that  all  witneffes  may  impartially  and 
jewel.      **  indifferently  teftify  their  certain  knowledge, 
♦«  and  the  whole  truth  in  the  caufe  they  are  to 
«fpeakto;  therefore, 

*^  Be  it  enaBedy  Sec. — That  for  either  of  the 
*' reafons  aforefaid,  and  not  otherwife,  every 
**  Afliftant  or  Juftice  of  the  Peace  may  take 
•*  affidavits  out  of  court;  fo  as  a  notification, 
"  with  reafonable  time,  be  firft  made  out  and 
"  delivered  to  the  adverfe  party,  (if  within 
**  twenty  miles  of  the  place)  or  left  at  the  place 
*^  of  his  dwelling,  or  ufual  abode,  to  be  prefent 
"  at  the  time  of  taking  fuch  affidavit,  if  he 
"think  fit." 

By  the  Court. rin  taking  depoBtions 

within  this  ftate,  the  ftatute  requires  notice  to 
the  adverfe  party,  if  within  twenty  miles:  As 
to  thofe  taken  out  of  the  ftate,  which  the  ftatute 
in  ftri6lnefs  does  not.  extend  to,  and  which  can 
only  be  admitted  on  the  ground  of  their  being 
fo  taken  as  to  come  fully  within  the  equity,  of  the 
ftatute;  there  ought  to  be  notice  to  the  adverfe. 
party  or  to  his  known  agent  oi.  auorney,  if  ei- 
ther are  within  twenty  miles  of  the  place  of 
caption;  which  not  having  been  given  in  this 
cafe  the  depoiition  i&  not  admiffible. 

Judge  Sherman,  dijfenting, ^The  adverfe 

party  in  this  cafe  lived  more  than  twenty  miles 
from  the  place  of  caption, -and  the  ftatute  does 
not  in  any  cafe  require  notice  to  be  given  to  an 
agent  or  attorney. 


HoRsroRB 


County  of  Litchfield,  Feb.  Term* 


H o  R  sF  o  R  D  and  A g  a r  d  againjl  Wright.         *^~"       ^ 

A^ion  on  the  covenant  offeifin  in  a  deed  of  bargain 
and  fale. 

By  l^AWy  Chief  Jujlicee 

IN  alliens  on  the  covenant  of  warranty,  the  in  tn  adioK 
conftant  rule  of  this  court,  has  been,  to  af-  nanto^ffeifX 
certain  damages,  by  th.e  value  of  the  land,  at  the  contained  in 
time  of  evi6lion,  though  the  BritifJi  rule  is  to  gafn  &  fa'^e^ 
give  the  confideration  of  the  deed. — The  diver-  ^^«  "^^^  ^.^ 
fity  in  this  refpeQ,  between  the  Eritijh  pradice  the^clnfider- 
and  ours,  is  undoubtedly  founded  in  the  perma-  deeT^bu^oa 
nent  worth  of  their  lands,  as  an  old  eountry,  and  the  covenant 
the  increafinff  worth  of  ours,  as  a  new  country.  °/  warranty, 

A       1  •     •     r  r    1    T  1  ^      n  /the  value  of 

— And  It  is  iuppoied  that  the  purchaler  goes  on,  the  land  at 
improves  and  makes  the  land  better  till  he  is  ""^^i^f 
evi6led. — -But  query,  whether  this  reafoning 
will  apply  to  an  adion  brought  on  the  covenant 
of  feifin ;  for  in  that  cafe  the  purchafer  does  not 
wait  till  he  is  eviQed,  but  brings  his  a6lion  im- 
mediately upon  difcovery  that  his  title  is  de- 
feftive;  and  it  is  prefumed  he  will  immediately 
acquaint  himfelf  with  the  ilrength  of  his  title. 

The  jury  computed  the  damages  by  the  latter 
rule,  and  returned  a  verdi6:  which  v/as  accepted 
by  the  whole  court. 


Miles 


f  County  of  Litchfiild,  Feb.  Term* 

Mills  again/i  BiSHo?  and  Wetmore^ 

JllZntfi'l  TTHIS  was  an  attachment  in  which  both  de- 
aefcnbed  in  X  fcndants  were  defcribed  as  inhabitants  of 
fs'^ing'L  the  town  of  Litchfield.  The  officer  made  re- 
habitanci  of  tum  that  he  had  attached  the  eftate  of  Jolm 
Sere^muhbc  ^jjhop.  One  of  the  defendants,  and  had  left  with 
ferviceon  him  a  truc  and  attefted  copy  of  the  writ,  &c. 
fcmc'of  "ifem  ^^^  that  the  other  defendant  was  out  of  the  ftate. 
juthctimeof  The  defendants,  pleaded  in  abatement,  that 
sxoVhc^x^ia  the  writ  had  never  been  legally  ferved',  for,  by 
»he  itasc.  the  officer's  return,  no  fervice  had  been  made 
upon  Wetmorcy  one  of  the  defendants. 

The  plaintiff  replied,  that  the  defendant, 
Wetmore,  after  the  date  of  the  writ,  and  before 
the  fervice,  removed  out  of  this  ft  ate  into  Nova- 
Scotia,  a  province  in  America,  fubjeQ  to  the 
king  of  Great-Britain ;  therefore,  the  law  re- 
quired no  fervice  to  be  made  on  him,  but  that 
fervice  on  the  other  defendant  was  fufficient  to 
fupport  the  procefs. 

The  defendants  demurred  fpecially,  and  for 
caufe  alledged,  that  the  plaintiff,  having  in  her 
writ  defcribed  both  of  the  defendants  as  inhabi- 
tants of  the  town  of  Litchfield,  fhe  is  therefore 
efliopped  from  pleading  any  new  matter,  repug- 
nant to  that  defcription. 

Mr.  Tracy  and  Mr.  Kir5y,  for  the  defendants^ 
contended  that  the  officer  was  bound  ftri8:ly  to 
purfue  the  diredion  given  in  his  precept;—- 
which  was,  to  make  fervice  on  each  of  the  de- 
fendants, by  attaching  their  perfons,  or  eftate, 
and  leaving  attefted  copies  with  each  of  them, 
or  at  their  laft  ufual  place  of  abode  within  this 
ft:ate. — The  ftatute  referred  to  in  the  replication, 
is,  "  That  in  aftionj?  on  joint  fecurities,  or  con- 

*'  trads. 


County  OF  Litchfield,  Feb.  Term.  5 

**  tra8:s,  when  all  the  defendants  are  not  inhabi-    i^ggf^ 
**  tants  of  this  ftate,  the  fervice  of  the  procefs     ===== 
**  on  fuch  of  the  defendants  as  are  inhabitants       Mills 
«'  of  this  ftate  (if  any)  fliall  be  fufficient  notice      ^^^''^ 
"  to  maintain  the  fuit  againft  all  the  defendants.        '^^!^ 
**  And  if  any  fuch  defendant  on  whom  the  pro-    Wetmore. 
^^  cefs  was  not  ferved  is  aggrieved,  by  the  judg- 
-**'  ment^.  he  ihay  be  relieved  by  audita  querela.'' 
-—This  ftatute  does  not  extend  to  any  fuit  where 
the  defendants  are  not  in  the  writ  defcribed  as 
belonging  out  of  this  ftate,    and  an  oppofite 
conftrudion  would  introduce  inconfiftency  into 
the  record. 

yiv,  Canfielddindiyir,  Reevey  for  the  plaintiff, . 
urged  that  it  appeared  from  the  pleadings,  the 
defendant,  Wetmore,  who  had  not  been  ferved 
with  the  procefs,  was  not  an  inhabitant  of  this 
ftate  at  the  time  of  fervice;  therefore  this  cafe 
is  clearly  within  the  reafon  of  the  ftatute. — That 
under  fuch  circumftances,  it  avails  nothing  to 
leave  a  copy  at  the  laft  ufual  place  of  abode^, 
becaufe  notice  of  the  fuit  is  not  obtained  by  it — 
That  thefe  matters  coming  up  in  the  courfe  of 
the  pleadings^  places  it  on  the  fame  footing  as 
if  exprefled  in  the  body  of  the  declaration,  be- 
caufe it  becomes  equally  a  part  of  the  record^, 
and  makes  the  whole  procefs  conliftent. 

The  replication  adjudged  infulEcientr— and  The  dcfcn» 
that  the  procefs  abate.    ^     ^  f.^^/'^y  ,, 

On   motion,    the  plaintiff  was   allowed   to  ^aement  to 
.amend  the  defcriptive  part  of  her  writ,  paying  cef^^s^^ua 

COft.  And,  a^  the  plan- 

Br>                          '%«■•/>  »       tJii  amends, 

Y  THE  Court- —Motion  for  amend-  andchepia..- 

ment  is  unneceflary :    For  the  ftatute,   which  '^^,.XZ  X 

enafts,  "  That  when  any  plea  fhall  be  made  in  !enashe%v-;ii 

"  abatement  of  any  writ  or  procefs,  before  the  ^'"^'  thccoiu 

**  fuperior  or  county  court,  or  before  any  Af- 

l'  fiitant  or  Juftice  of  the  Peace,  that  if  it  be 

"  ruled 


County  op.'Litchfield,  Feb.  T-£rm. 

"iTb?.  "  ruled  in  favour  of  the  defendant,  rtie  plaintiff 

=====*  "  fhall  have  liberty  to  amend-that  defeH  on  his 

Mills  ''  P^iying  down  to  the  defendant  his  cofts  t6 

Mgainji  «f  that  time;  and  then. to  proceed  as  he  might 

Bilhop  <c  j^^^^  ^Qj^g   -f  ^^  fuch  defeahad  been;'*  al 


AVctmore.  lows  the, plaintiff  always  to  amendMiis  writ  oft 
paying  coft  :  And  if  he  doth  not  cure  the  defe6i 
by  amendment,  the  defendant  may  againplead 
in  abatement. 


Lawrence  againjl  Kingman. 

Se  of  a  jiif-  TPHE  writ  was  direfted  to  an  indifferent  per- 
tice  vho  if-  X  fon  to  fervc  and  return,  and  the  authority 
direaeJto'an  ^gi^i^g  ^^  had  iufcrtcd  the  common  reafon,  ^  that 
indifferent  no  propcr  officcr  could  be  h*ad  without  great 
fe^rve^becaiife  expencc/'  The  defendant  pleaded  in  abate- 
ro  proper  of-  mcut,  that  the  writ  was  dated  a  fufficient  lengt'h 
i»a"wfthout  ^^  time  before  the  time  of  fervice  expired,  to 
greatexpenfe  havc  bccn  fcrvcd  by  a  proper  officer,  with  the 
nience,  is  '  Ordinary  expence  only ;  and  therefore  the  certl- 
eonciufive;     ficatc  of  the  Tufllce  was  manifeftly  a  miftake. 

and  the  court  _,  ^  _,  /^  «     - 

viu  not  en-       BytheCourt Thecertmcate  of   the 

themithof^  figniug  authority  is  conclufive,  and  the  Court 
fuch  certifi-  will  never  enquire  into  the  truth  of  fuch  certi- 
^*^^*  ficate.*     This  point  has  been  frequently  ad- 

judged. 


*  The  ftatute  wlilch  empowers  the  figning  authority  td 
^ireft  a  writ  to  an  indifFercnt  perfon,  is  as  follows — *«  And 
"  all  writs  and  procefles  fhall  be  direded  to  the  Sheriff, 
*'  his  deputy,  or  feme  conftable,  if  fuch  officer  can  be  had 
**  without  great  charge  or  inconvenience:  And  in  every 
««  cafe  wherein  the  authority  figning  a  writ  fhall  find  it  ne- 
"  cefTary  to  direft  the  fame  to  an  indifferent  perfon,  fuch 
"  authority  fhall  infert  the  name  of  fuch  indifferent  perfon 
"  in  the  direction  of  the  writ,  and  the  reafon  of  fuch  di- 
"  reftion  ;  and  if  any  ^Yn  be  otherwife  direfted  it  fhall 
'*  abate." 


GouHTY  OF  Litchfield,  Feb.  Term.  y 

judged.    The  laft  term  the  cafe  of  Allen  vs.  Jont%    ^^"^ 
came  up  by  appeal  on  pleas  of  abatement — It     ===:*=: 
was  the  fame  queftion ;  and  the  Court  then  ex-  Mills,  ^V, 
prefled  their  furprife  that  the  lower  courts  were 
unacquainted  with  this  point  in  pra£i;ice>  which 
had  been  fo  fully  fettled. 
The  writ  eflablilhed. 


Page  againjl  Camp. 
Error  from  the  judgement  of  a  Juflict  of  the  Peace, 

CAMP,  the  defendant  in  error,  brought  his  Anadionfos 
aaion  againft  Page,  the  plaintiff  in  error,  Si7ai>ie°' 
before  Juftice  0.  P.^  llating  in  his  declaration,  before  a  juf- 
*'  That  faid  Page   commenced   an    a8:ion  of  lu^fefs^thrde- 
"  Book-debt  againft  him  before  Juftice  D.  W.  fendanthas 
*'  demanding  forty  fliillings,,  &c. — -to  which  he  oufl/^'o^-' 
"  pleadedlhat  he  owed  nothing.— And  on  trial  r*^^*^^ '  "^^- 
"of  faid  caufe,  the  only  articles  exhibited  by  trials  be 
"  fafd  Pasre  dis  his  charge  on  book,  were  fundry  sr'"^^^  ^7  a 

€t  n  /  '    \     1  nil  1  ling'eMini- 

'  calks,  (to  wit)  hogineads,  butts  and  barrels;  iter  ofiawj 
"  which  he  teftified,  had  been  by  him  delivered  ^^^,;^^J^;j;^ 
"  to  the  care  of  faid  Camp  feme  time  before,  be  fubjeited ' 
"  and  that  they  were  then  good  and  valuable.  '°.^^V^  ^'^^^^ 

cc  11  i/ir*iT»\ii  n  mmation  cr 

and  that  he  (laid  Page)  had  never  fee-n  or  impeach 
"  heard  of  them  after  the  delivery.— By  means  Scrr^'"""" 
"of  which  teftimony  and  information  given  by 
"  faid  Page  on  faid  trial,  he  recovered  of  faid 
**  Camp  by  the  judgement  of  laid  Juftice  W, 
"  twenty-nine  Ihillings  debt  and  eighteen  fhiU 
"  lings  coft. — That  the  teftimony  and  informa-» 
"  tion  of  faid  Page  to  faid  Juftice,  refpefting 
"faid  cafks,  was  falfc;  for  faid  cafks,  at  the 
"time  of  faid  pretended  delivery,  were  all  un- 

"  found 


P  County  6i  Litchfisld,  Feb.  TERai. 

"^1786.    "  ^^^^"^  ^"^  ^^  ^^^y  ^^"^^  value  1  and  tnat  faid 
=====     "  ^^,^^>  after  the  time  of  faid  pretended  deli- 
Page       "  very,  had  taken  them  all  out  of  the  cuftody 
^gainj?      «  of  faid  Camp  and  difpofed  of  them;— which 
^^^'     <*  fads  did  not  appear  on  trial,  becaufe  they 
**  were  then  unknown  to  faid  Camp  :   And  by 
**  reafon  of  which  falfe  information  given  by 
**  faid  Page  in  the  premife^,  faid  Camp  is  dam- 
'^^  nified.  Sec. 

On  a  demurrer  to  this  declaration,  judge- 
ment was  rendered  for  the  plaintiff. 

Mr.  Tracy  and  Mr.  Kirby,  for  the  plaintiff  in 
error,  took  two  exceptions  to  this  judgement — ■ 
ift.  That  the  a8:ion  was  not  fuflainable,  being 
brought  to  draw  again  into  controverfy,  fa6ls 
which  had  once  been  adjudged  by  a  court  of 

competent  and  final  jurifdi6lion. 2nd,  That 

the  declaration  fuppofes  a  fraud  in  the  defend- 
ant, but  contains  no  allegation  of  fcience,  with- 
out which  no  action  for  fraud  is  fuftainable. 

Mr.  Adams  and  Mr.  Reeve,  in  fupport  of  the 
judgement,  contended,  that  this  aQ:ion  did  not 
call  in  queftion  the  former  judgement  rendered 
by  Juilice  W.  but  is  in  nature  of  an  indebitatus 
^Jfumpjit  to  recover  back  money  obtained  by 
fraud. — The  fa6ls  alledged  in  the  declaration 
amount  to  a  charge  of  perjury,  and  therefore 
contain  the  higheft  poffible  charge  of  fraud.— 
They  relied  principally  on  the  cafe  of  Mojes  and 
Macfarlan,  2  Burrow  1005. 
Judgement  reverfed. 

By  the  Court An  a6lion  for  perjury  is 

not  fuflainable  by  a  fmgle  Minifter  of  Law,  un- 
lefs  for  damages  confequent  upon  convi6lion; 
and  there  is  no  averment  in  the  declaration, 
e^  fcience  in  the  party  who  teftified,  that  his  tefti- 
mony  was  falfe,  without  which  it  could  not  be 
perjury. — But  the  aftion  was  brought  againft  a 
party  to  a  former  full  for  fupporting  faSs  by  his 

-    own 


County  or  Litchfield,  Feb.  Tesm.  ( 

own  teftimony,  which  it  is  averred  would  be     fro?"™ 

found    untrue    upon    new   evidence. This     J^=^— 

would  have  been  a  grouiid  for  a  new  trial,  had       Page 
the  caufe  been  of  fufficient  magnitude  :  But  the     t^gar^^fi 
law  doth  not  admit  of  new  trials  before  a  Juftice     ^^^"^P^ 
of  the  Peace,  nor  doth  it  fubjeQ:  the  decifions 
of  one  Juftice  of  the  Peace  to  the  re-examina- 
tion or  impeachment  of  another,  to  which,  an 
affirmance  of  the  judgement  in  this  cafe  would 
be  giving  countenance.  ^ 

The  authority  of  Macfarlan's  cafe,  cited  and 
relied  on  in  fupport  of  the  judgement,  does  not 
apply ;  the  cafes  materially  differ. — Indebitatus 
affumpjit  was  there  maintained  for  money  reco- 
vered before  a  Court  of  confcience  ;  but  main- 
tained on  grounds  of  which  the  Court  of  con- 
fcience had  no  cognizance,  and  to  which  their 
decifion  had  no  relation. — In  this  cafe,  one 
Juftice  re-examines  the  truth  of  fa6ls,  over  the 
head  of  another  Juftice,  of  fimilar  jurifdiBion, 
and,  in  fa6l,  tries  the  fame  cafe,  a  fecond  time. 

Dyer  and  Pitkin,  Judges^  dijjenting. — -In 
this  cafe  there  is  a  fraud  alledged  of  the  highefl: 
kind — a  taking  of  property  by  wilful  falfe  fwear- 
ing  in  a  Court  of  Juftice. — Why,  then,  fliould 
there  not  be  a  remedy,  and  why  is  not  this  a 
proper  one  ? — The  reafon,  that  the  public  will 
fuftain  an  inconvenience  by  fuch  a  pra8:ice, 
does  not  counterbalance  the  injury  that  will  be 
fuftained  by  leaving  fuch  injuftice  remedylefs; 
therefore,  the  fuit  ought  to  be  fupported  on 
principles  of  public,  policy  as  well  as  public 
juftice. — The  obje8:ion  that  there  is  not  enough 
alledged  in  the  declaration,  is  not  a  folid  one. 
We  rarely  alledge  more  in  any  declaration  for 
fraud.  The  fafts  ftated  are  fach,  that  the  fciencc 
and  intention  of  the  defendant  muft  follow  as  a 
neceffary  and  unavoidable  conclufion. 

It  is  faid  if  this  aSion  prevails,  it  will  eftab- 
B  lifti 


10  County  of  Litchfield,  Feb.  Term. 

"^Tj^.    Hfli  a  principle,  by  which  one  Juflice  will  in- 
==='    terfere  with  the  decifions  of  another.     That 
Page       confequence  will  not  follow.     The  firft  Juftice 
£gaiftj     ^ras  undoubtedly  right,  and  decided  upon  good 
^^^'      reafons  :  The  fecond  may  adjudge  in  favour  of 
the  oppofite  party,  and  be  equally  right ;  for 
the  queftion   before  the  lafl  is  a  very  different 
one  from  the  former. — Here  is  no  interference 
of  jurifdiftion — no  clafhing  of  judgements. — 
This  a^lion,  is   well   fupported   by  the  general 
principles  of  common  law.: — It  is  a  ftfong  cafe ; 
for  it  is  agreed  there  is  no  remedy  for  the  inju- 
ry complained  of,  unlefs   the  prefent  aftion  be 
fupported :  Therefore  we  cannot  fay.  the  judge- 
ment is  erroneous.. 


Hi  N  MAN  and  others,  Adminijlrators  q/Hii^UAisi 


againfl.  Stixes. 


ACTION  of  book-debt,  nil  debet  pleaded, 
and  verdi6l  for  the  plaintiff. The 

defendant  moved  in  arreft  of  judgement;  and 
for  caufe  alledged,  that  the  account  produ- 
ced on  trial,  contained  a  charge  of  about  forty 
'  pounds  for  a  tra6l  of  land,  and  alfo  a  charge 
of  about  three  pounds- as  intereft  on  part  of  the 
account;  both  of  which  were  illegal  as  charges 
on  book,  and  both  were  allowed  by  the  jury, 
in  their  verdift.t 

Motion  over^-ruled. 

By 


t  N.  B.  It  is  the  cuilom  of  the  courts  in  the  flate  of 
Conne^icu^tt  to  adn?it  motions  in  arreft,  which  are  conver- 
fant  about  fads,  dehors  the  record  :  And  likevvife,  by  the 
cuftom  of  courts,  the  adverfe  party  is  not  obliged  to  make 
any  anfwer  either  by  way  of  traverfe  or  demurrer  ;  but  the 
court  proceed  to  enquire  tke  truth  of  iuch  fa<^s,  unlefs  the 
oppofite  party  choofes  to  demur. 


County  of  Litchfield,  Feb.  Term.  li 

By  the  Court. On  examination  of  two     ^gg^^ 

of  the  jurors,  it  appears  that  the  jury  found  the     ==*==::= 
fum  of  40/.  credited  to   the   defendant,  which     Hinman 
was  equal  to  the  fum  charged  for  the  land,  and  ^^^^  others 
which  by  agreement  of  the  parties  was  to  be  in      g^-^^^ 
payment  for  the  land;  and  that  the  fmail  fums 
of  intereft  included  in  the  verdid,  were  not,  on 
trial,   objected  to  by  the  defendant :  And  one 
watnefs  teftified,  that  they  were  charged  by  con- 
fent  of  the  defendant. — There  were  other  pro- 
per book-debt  articles  in  the  account,  to  a  large 
amount,  to  which  there  was  no  objeQion  ;- — 
and  the  balance  would  have  been  the  fame,  if 
the  land,  and  fum  credited  for  it,  had  not  been 
entered  on  the  book  : — Therefore  the  motion 
in  arreft  is  infufficient.  , 

Judge  Dyer,  dijfenting, He  faid  that  the 

admifiion  of  fuch  charges  on  book,  fupported 
by  the  parties'  oath,  would  tend  to  introduce 
the  greatefl  imaginable  confufion.  The  nature 
of  the  thing  rendered  the  idea  of  fuch  a  charge 
on  book  abfurd ; — becaufe,  when  a  deed  of  land 
is  made  out,  the  grantor  acknowledges  the  con- 
fideration  to  be  paid  to  his  full  fatisfaftion 
at  the  time  of  the  grant ;  and  it  is  both  dan- 
gerous and  abfurd,  that  fo  high  an  evidence 
ihould  be  fet  afide  by  the  parties*  own  oath. 


Not 


12  County  or  Faiufield,  Feb.  Term, 

NoTT  againjl  Welles. 

RecognT-  A  CTION  of  debt  on  a  recognizance  for 
}^cc]^\  bau  -^~J^  fpecial  bail. — The  recognizance  was  ta- 
niay  be  tat    ken  to  tlic  advcrfc  party  and  not  to  the  county 

ken  to  the  r 

P^rty  for        trcalurer. 

^rhofe  bene-  Q^  dcmurrer  to  the  declaration,  the  only  ex- 
fir  they  arc  .  ,  i  .  .   ^ 

inwndcd.  ception  was,  that  the  recognizance  was  impro- 
perly taken,  for  that  it  ought  to  have  been  ta- 
ken to  the  county  treafurer  and  not  to  the  ad- 
verfe  party. 

Declaration  adjudged  fufficient. 

By  the  Court. The  recognizance  on 

which  this  a8:ion  is  brought  was  well  taken,, 
though  before  the  ftatute  dire6ling  that  in  cer- 
tain cafes  recognizances  fhall  be  taken  to  the 
adverfe  party. — -There  does  not  appear  any 
fufficient  reafon  why  bonds  of  recognizance 
might  not  ever  have  been  taken  to  the  perfon 
for  whofe  benefit  they  were  intended,  as  well 
as  other  bonds ;  though  a  different  mode  of  ta- 
king them  has  been  pratlifed,  and  may  yet 
alfo  be  good,,  in  cafes  where  there  is.  no  flatute 
diredion. 


Beers  againjl  Strong* 

Wordy  arc       \  CTION  on  the  cafe  for  thefe  words : 

jiot  to  be  ta-  ^"Y    "  My  wife  has  taken  a  falfe  oath,  and  it 

ken  in  the  '^   i      i       •     n  •         •  r  -n  i   t»        7 

raiidcr  fenfc  "  was  through  the  mitigation  ot  Beers  and  Booth, 
^MchYfclt-  "  l^er  fons. My  wife  has  taken  a  falfe  oath- 
tains  them  "  fhe  is  a  poor  creature — and  if  it  had  not  been 
fpo^kTn  mr  "  for  Andrew  Beers  and  David  Booth,  fhe  never 
licioufl/.       ^<  would  have  done  it ; — they  are  the  foundation 

"  of  the  quarrel. My  wife's  children  have 

**  taken  her  before  'fquire  Jlinman,  and  have 

^*  made 


County  of  Fairfield,  Feb.Term. 


13 


and  I  have  been 

David  Booth  and 

wife  before  'fquire 


"  made  her  take  a  falfe  oath, 
"  and  taken  a  copy  of  it.- 
"  Andrew  Beers  took  my 
"  HinmaUy  and  there  perfuaded  her  to  take  a 
«*  falfe  oath,  and  I  don't  blame  her  fo  much  as 
*^  I  do  Booth  and  Beers,  for  they  were  the  very 
"  means  of  it,  and  flie  never  would  have  done 
*^  it  but  for  them." 

General  iiTue  pleaded,  and  verdid  for  the 
plaintiff. 

Mr.  Edwards  moved  in  arreft,  on  the  ground, 
that  the  words  were  not  a8:ionable. 
Motion  over-ruled. 

By  THE  Court. The  words  laid,  natu- 
rally import  that  the  defendant's  wife  had  been 
guilty  of  perjury,  and  that  the  plaintiff,  by 
procuring  her  to  commit  the  crime,  had  been 
guilty  of  fubornation  of  perjury,  and  fo  are 
a8:ionable. — -Words  are  not  to  be  taken  in  a 
milder  fenfe  than  they  have  in  common  accept- 
ation; efpecially  after  verdi8:,  which  afcertains 
that  they  were  fpoken  malicioufty,  and  with  in- 
tent to  defame.. 


1786. 


Beers 

again/} 
Strong. 


Tweedy  agazTtfi  Brvsh.. 

ACTION  of  trover,  general  iffue  pleaded, 
and  verdid  for  the  defendant. — The 

plaintiff  moved  in  arreft ;  and  for  caufe  ailed-, 
ged,  that  two  of  the  jurors  who  tried  faid  caufe, 
and  were  in  favour  of  faid  verdift,  before  they 
were  fworn  and  impannelled  to  try  the  fame, 
had  given  their  opinion  in  favour  of  the  defen- 
dant: And  that  one  of  faid  jurors,  after  the 
caufe  was  committed  to  them  for  their  confi- 
deration,  and  before  they  had  delivered  their 

faid 


^^a juror  be- 
fore trial  has 
given  his 
opinion  in  a 
caufe,  and 
this  be  not 
known  by 
the  party, 
again  ft 
"vvhom  the 
opinion  ope- 
rates; it  is 
fufficicnt 
caufe  for  an 
arreft. 


14  County  of  Fairfield,  Feb.  Term, 

""1786!     ^^^^  verdia  to  the  Court,  gave  and  publifhed 

=====     his  opinion  in  faid  caufe  to  other  perfons,  not 

Tweedy     of  the  jury,  and  converfed  with  them  refped- 

i  Motion  in  arreft  fufficient. 
By  .THE  CouiLT — (Judge  Sherman  abfent) 
•On  enquiry,  it  appears,  .that  before  the  jury 
were  impannelled,  two  of  them  had  formed  and 
declared  opinions  in  favour  of  the  defend mt, 
which  was  not  known  by  the  plaintiff:  Tr.erc- 
fore,  this  cafe  has  not  had  a  fair  aiid  impar- 
tial trial. 


Hobby  againji  Finch  and  Knapp. 

nSmem  that  HPHE  declaration  flates,  that  the  defendants 
lands  are  to  X  wcrc  adminiftrators  on  the  eftate  of  Caleb 
pubUc  auc-  Finch^  deceafed ;  and  had  obtained  an  order 
tion,  with  from  the  court  of  probate  to  fell  at  public  ven- 
thefaic?&c.  due  a  tra6l  of  land  belonging  to  faid  eftate,  and 
is  a  fufficient  tj^^t,  bv  a  number  of  advertifements,  they  gave 

memoran-  •  r    i  •  1      i  r  r  ^  rr^i  1 

dum  in  wri-   noticc  ot  the  time  and  place  of  fale. — That  the 
Sltil^e'of  plaintiff  attended  at  the  time  and  place  appoint- 
frauds,  to      ed  by  the  defendants  in  their  advertifements,  , 
vendor^to  a    ^^^^^  the  Conditions  of  the  fale  of  faid  land 
performance  wcrc  publifhed  and  made  known  to  the  plaintiff 
*'l^nu^''^^^  by  the  defendants; — ^which  were,  .that  the  land 
fo  fet  up  for  fale,  Ihould  be  ftruck  off  to  the 
higheft  bidder,  aad  a  deed  figned  and  executed 
by  the  defendants  to  the  perfon  that  fhould  pay 
to  them  the  greateft  price,  or  become  obligated 
to  them  in  the  largeft  fum  of  money,  (with  fure- 
ty  if  required)    for  faid  land- — And  that  the 
plaintiff,  according  to  the  conditions  fo  made 
known,  did  bid  the  higheft  price  for  faid  land, 
and  became  obligated  with  furety  to  the  defen- 
dants in  the  greateft  fum  of  money  of  any  perfon 

prefent 


County  of  Fairfield,  Feb.  Term.  15 

prefent  at  the  time  where  faid  land  was  offered    ^357^ 
for  fale  as  aforefaid ;  but  that  the  defendants     =4=='= 
have  never  executed  faid  deed  according  to  the     Hobby 
tenor  of  their  promife,  &c.  ^g^^^'fi 

Mr.  Sturgefsy  for  the  defendants,  pleaded  in  ^^^^^^  ^^* 
b'ar,  that  the  agreement  mentioned  in  the  de- 
claration, was  never  reduced  to  writing,  nor 
was  there  any  memorandum  or  note  thereof 
ever  made  in  writing  and  figned  hj  the  defeni- 
dants,  or  any. other  perfon  by  them  thereunto 
lawfully  authorized,  which  is  made  neceflary 
by  the.  ftatute  ^^'  for  prevention  of  frauds  and 
perjuries,'^ 

Mr.  Davenport  and  Mr.  Thompfon^  for  the 
plaintiff,  replied,  particularly  defcribing  the 
advertifements  and  conditions  of'fale^  figned  by 
th«  defendants,  and  that  the  plaintiff  had  fully 
complied  with  the  terms  therein  expreffed;  and 
that  therefore  there ,  was  a  memorandum,  or 
note  made  in  writing,  of'  the  agreement  men- 
tioned in  the  declaration. 

On   demurrer  to  the  replication,  the  only 
queftion  was,  whether  the  advertifements  and 
conditions  of  fal^,  defcribed  in  the  pleadingv'^, . 
,  were  fuch  a  memorandum  of  the  agreement  as 
would  fave  this  cafe  out  of  the  IMtute  of  frauds : 
^y  which  it  is  enacled, — "That  no  fuit  in  law^ 
"  or  equity  fhall  be  brought  or  maintained  upon 
"  any  contrad,  or  fale  of  lands,  tenem.ents,  or 
^'  hereditaments,  or  any  interefl  in  or  concern- 
**"ing  them;  unlefs  the  agreement  upon  which 
"  fuch  action  fhall  be  brought,  or  feme  memo- 
**  randum  or  note  thereof  fhall  be  made  in  wri-        0 
**■  ting,  and  figned  by  the  party  to  be  charged  ^ 
"  therewith,  or  fome  other  perfon  thereunto  by 
**^  him  lawfully  authorized." 

Replication  adjudged  fuflicient. 

B Y  TH E  Co u RT. The  advertifements  and 

conditions  of  fale  fet  forth  in  the  reply  of  the 

plaintiff. 


iS  County  or  Fairfield,  Fbb.  Term. 

^„g^  plaintiff,  are  a  fufficient  evidence,  within  the 
==  meaning  of  the  ftatute,  of  an  agreement  in  %vri- 
Kcbbr  ting  figned  by  the  defendants,  to  fell  the  land  to 
agatuft  the  higheft  bidder;^  and  as  the  plaintiff  ^\-as  the 
Pinch,  &c.  jjigjiel^  bidder,  and  tendered  fecurity  for  pay- 
^  1  Black,  ment,  purfuant  to  the  written  agreement  of  the 
itone'sRe-  defendants,  he  has  a  right  of  adion  againft; 
Simon ^!  ^^'^i  for  refuling  a  deed,  which,  by  their  a- 
Metivier.    greeraent,  they  had  promifed   to  any  perfon, 

3.Barr.   complying  with  tlieir  terras. If  an  action  in 

'^whfo^  fuch  cale  couW  not  be  fuftained,  it  would  dif- 
1 18— WeU  courage  people  from  bidding  at  public  au8ion, 
ford  F$.  and  render  ineffectual  the  laws  direding  fuch 
^^^x^^l       difpofition  of  eftates. 

andothcr.c.         j^^^  Ellsworth,— Ji^^/n^. ift. 

Becaufe  the  declaration  is  ill.  It  doth  not  ap- 
pear that  the  plaintiff  paid  or  offered  to  pay,  or 
fecure  the  fum  he  bid  for  the  land,  nor  that  he 
bid  any  fum  that  could  have  juflified  the  admi-i^ 
niftrators  in  pafling  a  deed :  Xor  is  there  any 
averment  of  the  value  of  the  land,  or  any  rule 

of  damages  given. 2g.   The  advertifement 

X  I  Sr.       is  no  evidence  or  memorandum  of  the  agree- 
426,  Sea-    jnent  on  which  the  action  is  groimdedj. — The 
Nede^  *      agreement  was  made  at  the  time  the  land  was 
bid  off,  and  was  made  and  expreffed  on  the  one 
part  by  the  bid  made  for  the  land,  and  on  the 
other  part  by  ftriking  it  off. — Here  the  minds 
^of  the  parties  met,  and  the  fubftance  of  the  a- 
greement,  as  thus  expreffed,  was,  that  the  plain- 
tiff fhould  have  the  land  for  the  fum  he  had 
then  bid  for  it,  and  that  a  deed  fliould  be  exe- 
cuted accordingly. ^The  advertifement  doth 

not  exprefs  this  agreement,  nor  either  part  of  it; 
nor  was  any  reference  had  to  the  advertifement 
in  forming  this  agreement,  farther,  than  as  to 
the  mode  of  pa^Tnent. — That  this  fale  was  at 
public  auction,  makes  no  difference. — It  is  as 
requifite  by  the  ftaxute  that  public  faies  of  land 

(hould 


County  of  Fairfield,  Feb.  Term.  17 


fhould  be  guarded  as  private  ones ;  and  it  is  as        1786= 
eafy  to  be  done. — A  memorandum  of  the  fale     == 


might  be  taken  in  writing  from  the  vendor,  and  Hobby,  &c. 
would  hardly  be  refufed,  if  required  at  the  time 
of  the  fale  or  agreement. — I  think  the  ftatute 
extends  to  this  cafe,  and  that  it  has  not  been 
complied  with. 


yizKn  againjl  CoGGsn ALL. 

THIS  cafe  was  defaulted  and  heard  in  da-  Appeal i?es 
mages  at  the  Court  of  Common  Pleas.- —  after  defa.iic 
After  damages  were  affeffed,    the  plaintiff  mo-  ladamage'i! 
ved  for  an  appeal,- — which  was  allowed. — ^At 
this  Court  the  defendant  pleaded  in  abatement 
of  the  appeal,,  on  the  ground  that  no  appeal  can 
be  taken  after  a  default. 

But  it  was  held  by  the  Court,  that  the  appeal 
well  lay,  becaufe  there  was  a  hearing  in  the 
cafe,  which  brought  it  within  the  ftatute. 


Fitch 


i8 


County.  OF  New-Haven^  Feb.  Tebm. 


7^6. 


A  furrender 
of  the  prin- 
cipal in 
court  by  the 
bail,  is  CO  be 
proved  only 
by  the  re- 
cord, &  can- 
not regularly 
be  pleaded 
js  matter  in 
pais. 


tj  Croke    ' 
ja.  402.—* 
3.  Bals. 
i92,Auftin 
vs.  Monk 
— Hobart 
210 — 
1.    Levinz 
211-Ray- 
znond  50-- 
Vin.  A.  P. 
B.  A.  492, 
pi.  8.— 
Poph. 185, 
jS6—Keb. 
761,  816. 


Fitch  againjl  HalLc 

ACTION  by  the  Sheriff  on  a  bail  bond. 
The  defendant. pleaded,  that  on  tlie  fifft 
day  oT  April,  A.  D.  1779,  %hile  the  aQion  was 
pending  in  court,  and  before  final  jCidgement 
was  rendered,  the  defendant  did  tender  his  prin- 
cipal to  the  plaintiff  (he  then  being  Sheriff,  Sec) 
to  be  taken  into  cuftody  in  difcharge  of  his 
bond;  but  the  Sheriff  refufed  to  receive  him. 

And   that  afterwards   (to  wat)  on  the  firfi 

Tuefday  "of  April,  1779,  while  the  adion  was 
ftili  pending  againft  his  principal,  the  defendant 
did  deliver  him  up  in  open  court  in  difcharge 
of  his  bond,  and  requeited  to  be  difcharged 
therefrom;  but  the  Court  negleSed  to  make 
any  record  thereof,  or  to  receive^him  into 
cuftody. 

The  plaintiff  demurred  fpecially. — ^ift.  Bc- 

caufe   of  duplicity ^2d.  For  that  the  feveral 

matters  pleaded  were  infufficient. 

By'Ths  Court. The  plea^in  bar  is  in- 
fufficient, not  on  the  ground  of  duplicity ;  for 
though  two  matters  are  plead,  they  are  not  fuf- 
ficient  matters  :  Averments  immaterial  require 
no  traverfe,  and  are  mere  furplufage.— But 
the  fault  is  in  pleading  a  furrender  of  the  prin- 
cipal in  court  as  a  matter  in  pais,  and  not  a 
matter  of  record. |] — -Every  tranfa6lion  in  a 
court  of  record,  pertaining  to  a  procefs,  of 
which  the  furrender  of  the  principal  in  dif- 
charge of  bail  is  one,  regularly  becomes  a  mat- 
ter of  record,  and  muft  be  fhewn  by  record 
onlv%  and  plead  eic<:orilingly. 

Ju(^ge  Dyer,   dijjenting. It  is  agreed, 

that  the  producing  the  body  of  the  principal, 
and  delivering  him  up  in  court,  is  a  legal  fuihl- 

mcnt 


County  of  New-Haven.  Feb.  Term. 

ment  of  the  condition  of  the  bail  bond,  and  is 
all  the  bail  can  be  obliged  to  do.— It  is  highly- 
proper  that  the  court  caufe  an  entry  to  be  made 
thereof  but  it  is  what  is  not  itr  the  power  of  the 
bail  to  enjoin  or  enforce. — There  is  no  pofitive 
law  which  requires  it,  or  decidedly  determines 
fuch  entry  to  be  the  only  evidence. — The  ad- 
mitting proof  of  the  fa8;  by  verbal  and  other 
teftimony,  does  not  contradi6l  or  oppofe  any 
pofitive  record,  but  goes   only  to  prove  a  ma- 
terial fa6l  where  the  record  is  wholly  filent. — 
Th^  bail  exprefsly  avers  in  his  plea,  that  the 
principal   was  delivered  up  to  the  court  in  dif- 
charge  of  his  bond ;  and  the   law  makes  the 
llrongeft  conftrudion  in  favour  of  the  bail; — I 
am  therefore,  of  opinion  the  plea  in  bar  is  fuf- 
licient.     When  the  bail  has   done   all    in  his 
power,  and  what  the  law  requires,  ought  he  to 
be  fubjefted  to  pay  over  what  wa^  only  iliQ  juJI; 
debt  of  the  principal,  meerly  through  the  neg- 
le6l  of  a  clerk  ? 

Note,    This  judgement  was  afterwards  affirm- 
ed in  the  Supreme  Court  of  Errors, 


19 


Fitch 

agaitiji 

Hall. 


Beers  and  Others  againjl  St r o  n  g  ard  Wife, 
In  Chancery, 

THIS  was  a  petition  againfl  tenants  in  dower, 
to  compel  repairs  to  be  made,  agreeably 
to  ftatute.  The  heirs  and  widoio  o^  Abel  Gunn, 
deceafed,  made  partition  of  his  eflate,  by  mu- 
tual agreement,^  under  their  hands  and  feals ; 
by  which,  a  certain  traB  of  land  and  buildings, 

C  2  were 


Statute    pro  - 
vifions  For 
compelling 
tenants  in 
do-«'er  to  re- 
pair, extend;: 
only,  todoy- 
cr  affigned 
in  the  man- 
ner the  It  a* 
lute  pre- 
fer! bc5. 


20  County  of  New-Haven,  Feb.  Term. 

1^    were  apportioned  to  tloe  widow  as  dower ;  and 

^=:2==L    the  buildings  had  not  been  kept  in  tenantable 
Beers,  &c.  repair. 
^g^^'i/^  On  demurrer, 

trong.  The  WHOLE  Court  held — That  the  Statute 
provijion  for  compelling  tenants  in  dower  to  re- 
pair, extends  only  to  dower  ajfigned  in  the  manner 
the  Statute  prefcribes. — Here  has  been  no  fuch 
affignment;  nor  is  there  any  dower* — The  wife 
of  faid  Strongy  if  fhe  has  any  thing  in  the  lands 
in  queftion,  has  it  by  purchase,  and  without 
other  limitations  or  conditions  than  fuch  as  are 
fpecially  provided  in  the  grants  or  fettlement  of 
the  heirs  under  which  Ihe  holds. 

Note.  This  judgement  was  afterwards  affirm- 
ed in  the  Supreme  Court  of  Errors. 


State 


County  of  Hartford,  March  Term.  2i 


I 


St  at  e  qfCot^  n  ec  t  i  c  u  t  Ggauif:  E  l  i  g  ii  a  Ends. 

NFORMATION  at  common  law  for  utter-  The  iiamte 
ing  and  putting  off  a  counterfeit  note,  in  ons'octen"s 
imitation  of  the  notes  iiTued  by  the  hon.  Robert  ««>  offences 
Morrisy   Efq.  fuperintendant  of  finance. — The  be  punished 
crime  alledged  to  have  been  committed  more  ^^^^    '{-g^^. 
than  one  year  before  the  filing  of  the  infoim-  the  difcretU 

ation.  Tonntzs, 

Mr.  Edwardsy  counfel  for  the  prifoner,  plead-  fornication, 
ed  the   Statute  of  limitations  ;  by  v/hich  it  is  ap"d"'he%'': 
ena6i:ed ; — "  That  no  perfon  fhall  be  indicted,  fore  to  an- 
**  profecuted,  informed  againft,  complained  of,  ^j  '^l^^^on 
**  or  compelled  to  anfwer  before  any  Court,  Af-  ^^^  for  p^^- 
*^  fiftant  or  Juftice  of  the  Peace  within  this  Rate,  terfei'c  not?,' 
**  for  the  breach  of  any  penal  law,  or  for  other  made  in 

-,.  Ti  1  r  1  r        imitation  or 

*  crime  or  milaemeanor,  by  reaion  whereor  a  thenotesiffu- 
*'ybr/ef^wr^bfelongs  to  any  public  treafury,  un-  ^^^^y/*^^^"^ 
*'  lefs  the  indi6lment,  prefentment,  information,  of  finance 
"  or  complaint  be  made  and  exhibited  within 
*^  one  year  after  the  offence  is  committed, 

**  And  every  fuch  indiOiment,  prefentmentj, 
**  information  and  complaint,  that  is  not  made 
**  and  exhibited,  as  afore faid,  within  the  time 
•'  limitted  for  the  fame  as  aforefaid — ihall  be 
**  void  and  of  none  effe6l. 

*'  Provided  always^  That  this  a6l  fliall  not  ex- 
**  tend  to  any  capital  offence ;  nor  to  any  crime 
**  that  may  concern  lofs  of  member,  or  banifli- 
"  ment,  or  any  treachery  againft  this  ftate,  &c.'* 

•Mr.  Rooty  attorney  for  the^ftate,  demurred.™ 
And  on  argument,  the  plea  was  adjudged  fuffi- 
cient; — for,  , 

By  the  Court. The  offence  is  within 

the  ftatute  of  limitations,  being  punifhable  by 
fine,  or  without,  at  the  difcretion  of  the  Court. 
The  conftrudion  of  this  ftatute  has  been  liberal, 

extending 


22 


State  of 

Conneft. 

sgainfi 

Enos. 


County  of  Harttord,  Feb.  Term, 

extending  it  to  offences  which  might  be  punifh- 
ed  by  fine,  or  without,  at  the  difcretion  of  the 
Court;  as  fornication,  riots,  &c.  The  excep- 
tions in  the  aft  do  not  extend  to  this  cafe;  for, 
by  flatute,  no  kind  of  forgery  is  punifhed  with 
fuch  feverity  as  lofs  of  limb ;  and  at  common 
law,  punilhments  are  never  more  fevere  than  by 
ftatute. 

Judge  Dyer>  dijfenting — id.  Becaufe  there 
is  no  precedent,  extending  the  flatute  of  limita- 
tion, to  cafes  of  this  defcription,  but  the  contrary. 

2d.  The  flatute  referred  to,  w:hich  requires 
the  information  to  be  within  one  year,  is,  ^'  for 
"the  breach  of  any  penal  law,  or. for  other 
*'  crime  or  mifdemeanor,  by  reafon  whereof  a 
**  forfeiture  belongs  to  any  public  treafury,  &c.* 
-^On  this  information,  there  is  np  forfeiture  to 
any  public  treafury  enjoined  by  .any  pofitive 
law ;   therefore  the  cafe  is  not  within  the  flatute. 

3d.  Crimes,  which  may  be  punifhed  by  lofs 
of  member,  banifhment,  &c.  as.  well  as  theft  of 
more  than  ten  fhillings  value,  are  exprefsly  ex- 
cepted by  the  flatute.  If  the  perfon  fhould  be 
convi6led  on  this  information,  the  law  admits  of 
a  punifhment,  which  concerns  lofs  of  member  or 
banifliment  i  therefore,  this  cafe  was  not  within 
the  flatute. 


Bradley  and  Others  againjl  Blodget. 


ACTION  on  the  cafe,  flating  that  the  plain- 
tiffs purchafed  of  the  defendant  a  certain 
tra6l  of  land  fuppofed  to  contain  fixty  acres,  de- 


Lands  fol<J, 
and  convey- 
ed by  deed, 
defcribing 
the  metes, 
bounds, 

lines  and  fuppofed  quantity;  a  verba!  prom  ife  atthe  Hime  time,  to  pay  the  grantee 
for  ill!  thai  it  shall  fall  short  on  jncnfurauon,  adjudged  ::>  be  vithju  the  ftatutc 
^of  frauds  and  perjury. 


County  or  Hartford,  March  Term.  23 

fcribed  by  certain  metes,  bounds  and  lines.—     "^"^786? 
That,  at  the  time  of  faie  and  delivery  of  the     r=^^~ 
deed,  the  defendant  promifed,  if  on  aftual  men-  Bradly,  &g 
furation  faid  trad  of  land  fhould  fall  fliort  of    .^^^ 
fixty  acres,  he  would  fatisfy  the  plaintiffs  for  the  * 

deficiency ;  and  afterwards,  by  an  accurate  fur- 
vey  and  menfuration,  there  proved  to  be  but 
forty  acres. 

The  defendant  demurred  fpecially,  and  for 
caufe  affigned — 

1.  That  the  plaintiffs  might  have  their  reme- 
dy on  the  covenants  contained  in  the  deed. 

2.  That  it  appears  from  the  declaration,  the 
plaintiffs  took  a  deed  of  faid  land,  defcribing  the 
quantity  and  bounds,  and  no  parole  contrail  or 
agreement,  beyond  that  contained  in  the  deed, 
is  admiffible  in  law. 

3.  The  declaration  fhows,  that  the  plaintiffs 
faw  faid  land  and  received  a  deed,  giving  a  rule 
to  find  the  quantity ;  of  confequence,  there  was 
no  deception. 

4.  That  the  promife  declared  upon,  \s  a  parole 
promife,  concerning  the  fale  of  lands,  and  there- 
fore within  the  ftatute  of  frauds  and  perjuries. 

The  plaintiffs  joined  in  demurrer,  and  the 
declaration  was  adjudged  infuflBcient. 

By  Law,  Chief  Jujlicey  Dyer  and  Pitkin, 
Judges,^  This  declaration  is  infufficient  on 

two  grounds : — 

1.  Becaufe  the  plaintiffs  might  have  known 
the  quantity  of  land  before  they  paid  the  mo- 
ney, it  being  particularly  defcribed  by  metes 
and  bounds ;  and  no  pretence  but  that  the  title 
well  pafled,  or  that  the  lines  therein  defcribed 
fell  fhort,  or  that  the  angles  are  mifdefcribed. — 
And  as  the  deed  contained  in  it  demonftrativc 
evidence  of  its  contents,  any  parole  contraft, 
contradicting  the  f^mie,  or  relative  thereto,  is 
inadmiffible. 

2.  Becaufe 


24  County  or  Hartford,  March  Term. 

""17867         2-  Becaufe  it  does  not  appear  that  the  agree- 
ment was  reduced  to  writing,  and  therefore  void 


Bradly,&c  by  the  ftatute  of  frauds  and  perjuries ;  as  the  de^ 
Elod'c^a.  fe^^ai^t  in  his  fpecial  demurrer^  points  out  the 
contraft,  as  coming  within  the  ftatute,  on  the 
ground  of  being  a  parole  contraft,  and  the  plain- 
tiffs not  replying  over  and  alledging  it  to  be 
otherwife,  it  muft  be  prefumed,  the  promife  was 
not  committed  to  writing. 

Judge  SRERMANydiJIeiiling.'—'—The  agree- 
ment is  not  within  the  ftatute  of  frauds  and  per- 
juries, it  being  a  promife  only  to  pay  back  a  fum 
of  money,  overpaid  for  the  land,  if,  upon  a6iual 
menfuration,  it  fell  ftiort  of  its  fuppofed  con- 
tents.— And  the  agreement  appears  to  be  legal 
and  reafonable,  for  the  price  of  the  land  was,  by 
agreement  of  the  parties,  to  be  in  proportion  to 
the  contents  which  could  not  be  known,  but  by 
its  being  furveyed  by  fome  fkilful  furveyor, 
which  the  parties  might  well  poftpone  to  fome 
convenient  time ;  and  if,  when  afcertained,  it 
appeared  that  more  than  the  price  agreed  on 
had  been  paid,  the  furplus  ought  to  be  refund- 
ed.—And  if  the  promife  had  been  within  the 
ftatute  of  frauds  and  perjuries,  and  in  writing,  it 
need  not  have  been  fet  forth  in  the  declaration^ 
but  might  have  been  given  in  evidence  on  the 
general  iffue ;  and  no  advantage  can  be  taken  of 
the  omiflion  on  a  general  or  fpecial  demurrer* 

^ Raym,  450,   4-51—2  Jones,   158.   S.  C— 

t  Bac.  Abr.  75 — Bulkfi  Niji  Prius,  275. 


Brinley 


CouNCY  OF  HARTfQRDji  March  Term.  25 

BRiNLEY^^^in/?  Avery. 
HIS  was  an  adion  on  the  cafe,  brought  by 


T 


An  adion  is 
not  main- 


George  Brinley,  Efq.  Commiffaiy  General  tainabie*  in 
of  the  Britifh  province  of  Nova  Scotia,  founded  t'atS 
on  a  written  agreement,  made  in  a  fo- 

The  defendant  pleaded  in  abatement,  that  the  t^f  between 
plaintiff  is  an  alien,  born  in  the  dominions  of  the  crizens  of 
king  of  Great-Britain,  an  inhabitant  of  Halifax,  \nttobc^* 
in  faid  dominions,  a  fubjeft  within  the  allegi-  f^^'^^e^^"^ 
ance  of  faid  king,  and  without  the  allegiance  of 
the  ftate  of  Gonnedicut,    and  of  the  United 
States  of  America ;  and  banifhed  and  profcribed 
by  the  commonwealth  of  Maffachufetts,  and  at 
the  time  of  the  date  of  faid  contrail  and  fuppo- 
Ted  breach  thereof,  both  the   plaintiff  and  de- 
fendant  were  inhabitants  of  faid  Halifax,  fubjetts 
of  faid  king  of  Great-Britain ;  both  under  the 
allegiance  of  faid  king,  and  owing  no  allegiance 
to  this  ftate,  or  to  faid  United  States.  .  And  the 
defendant  at  faid  date,  and  for  more  than  twenty 
five  years  before  the  fame  was,  and  had  been,  an 
inhabitant  of  faid  Nova-Scotia,  and  fubje8:  of 
faid  king.     And  that  faid  Halifax,  at  the  time 
of  the  date  of  faid  contra6l  was,  and  ever  had  - 
been,  governed  by  the  laws  and  flatutes  of  the 
kingdom  of  Great-Britain,  and  not  by  the  laws 
and  flatutes  of  the  ftate  of  ConneQicut ;  and  faid  • 
contraQ,  and  all  tranfaftions  betv/een  the  plain- 
tiff and  defendant,  ought  to  be  tried  and  deter- 
mined in  and  by  the  courts  of  faid  king  of  Great- 
Britain,  according  to  the  laws,  ilatutes  and  ufa- 
ges  of  faid  kingdom,  and  not  in   and  by  any 
court  in  the  ftate  of  Connefticut,  or  according 
to  the  laws  and  ufages  of  faid  ftate.     And  faid 
contraB  was  made  at  faid  Halifax,  and  to  have 
been  there  performed,  during  faid  time  when 

D  the 


26  County  of  Hartford,  March  Term. 

"^Tgg^     the  plaintiff  and  defendant  were  inhabitants  of 
=>=:=     faid  Halifax. 

Brinley         g.  That  by  the  law  of  nations,  no  fuch  a6lion 

^atnji      ^^^  ^^  fupported,  nor  can  the  fubjeds  of  this 

ftate,  by  the  laws  of  England,  or  of  other  na- 

.  tlons,  maintain  any  aBion  againft  each  other  on 
any  contrad  made,  or  for  any  injury  done,  with- 
in the  jurifdiBion  of  faid  ftate,  in  any  court  in 
the  Britiih  dominions,  or  in  any  other  foreign 
court. 

3.  That  the  final  judgement  given  by  this 

.t:ourt,  in  the  prefent  adion,  w^ould  be  no  bar  to 
the  plaintiff  in  commencing  and  profecuting  a 
fecond  a6i:ion  for  the  fame  caufe,  matter  and 
thing,  in  any  of  the  courts  in  faid  province  of 
Nova-Scotia,  or  faid  kingdom  of  Great-Britain, 

.nor  prevent  the  plaintiff  from  recovering  a  {^^ 
cond  judgement  thereon  againfl  the  defendant, 
his  goods  and  eftate  yet  remaining  in  faid  Ha- 

'  iifax. 

Replication. — That  faid  king  and  king- 

'  dom  of  Great-Britain,  to  whom  the  plaintiff  was, 

^  and  is  a  fubje6l,  and  owed  his  allegiance,  are, 
and  were  at  the  time  of  faid  contract,  at  amity, 
and  in  league  with  this  ftate,  and  the  United 
States  of  America;    and  their  fubje6ls  have 

'  right,  by  the  treaty  of  peace  between  faid  king 
of  Great-Britain  and  the  United  States,  and  by 
the  laws  of  nations,  and  of  this  ftate,  to  main- 
tain a6lions  in  the  courts  of  common  law  in  this 
ftate,  for  the  recovery  of  their  dues,  againft  the 
citizens  of  this  ftate,  or  others  that  are  fubjefts 
of  the  king  and  kingdom  of  Great-Britain,  who 
may  come  to  refide  here,  and  take  up  their 
abode  in  this  ftate  with  their  property  and  effe8:s, 
in  any  a6lion  that  is  perfonal  and  tranfitory. — 
And  that  the  defendant  was  an  inhabitant  born, 
and  refided  a  long  time  in  this  ftate,  and  after 
many  years  abferice  therefrom,  at  faid  Halifax, 

he 


County  of  Hartford,  March  Term,  27 

he  returned  into  faid  ftate  in  the  year  1785,  with  ^TgF" 

his  property  and  efFefts,  and  ever  fince  has  here  ===^ 

refided,  and  taken  up  his  abode  in  this  ftate,  and  Brinley 

both  his  perfon  and  eftate  are  amenable  to  the  ^g^^^fi 

laws  and  courts  of  the  fame.  ^^^^' 

To  this  there  was  a  demurrer  and  joinder  in 
demurrer; — and  the.  plea  in  abatement  ruled 
fufficient. 


of  the  court. 


WoosTER  and,  Woosxer  agi^njl  Vaksoi^s.  > 

ERROR'  From  the   city  court   in    Middle-  y^en an. tc- 
town. The  defendant  in  error  brought  before  any^^ 

his  aftion  on  a  promiffory  note,  dated  at  New-  p""  ^^  jj^- 
Haven  the  7th  day  of  June,   1784,  before  the  limued  ju- 
city  court  in  Middletown,  and  obtained  judge-  Jj5;?^^|,^"j^_ 
ment  by  defauh. Errors  affigned, .  tianoughtto 

1.  That- it  appears  by  the  records,  that  faid  i^7'^"P''jJ^- 
note  was  executed  before  the  city  of  Middle^  caufeofaai- 
town  was  ineorporatedi  and  before  the  granting  ^"ithfn^the 
the  charter  incorporating  the  fame ; — faid  char-  j»rirdiaion 
ter  of  incorporation  being  granted  by  the  Ge- 
neral Affembly,  holden  at  Hartford  on  the  fe-^ 
cond  Thurfday  of  May,  1784  ;  which  Affembly 
was  fitting  at  the  time  when  faid  note  was  exe-> 
cuted. 

2.  That  faid  note  wa^  not  executed  within  the^ 
limits  of  faid  city  of  Middletown,  but  in  the  town 
of  New-Haven  :  And  the  caufe  of  aftion  did 
not  arife  within  the  limits  of  the  city  of  Mid- 
dletown. 

3.  That  it  doth  not  appear  by  faidv  record, 
that  faid  note  was  executed  in  faid  city  of  Mid-, 
dletown,  but  that  the  fame  was  executed  with- 
out the  limits  of  faid  city. 

D  2  The 


23 


786. 


againfi 
Parfons. 


CotJNfV  of'Hartford,  Mar'cH  'TEiej.fi 

The  d'efentfarit  in  ei-for  demurreid  fpecially; 
and  for  caufe  aflighed,  that  faid  writ  contains  an 
affignment  of ^  errors  both  in  law  and  •  in  faQ, 
which  cannot  be  joined  in  one  writ  of  error: 
For,  it  is  affigned  for  error,  that  fard  note  was 
executed  before  the  incorporation  of  faid  city 
of  Middletown ;  and  alfo  that  faid  note  was  not 
executed  within  the  limits  of  faid  city,  but  in  the 
town  of  New-Haven  :  Both  which  are  aflign- 
ments  of  errors  in  fa8:,  not  appearing  on  the  re- 
cord, and  triable  only  by  iffues  in  fa5.— And 
the  plaintiffs  further  aflign,  that  it  does  not  ap- 
pear by  the  record,  that  faid  note  was  executed 
in  faid  city  of  Middletown,  but  that  the  fame 
was  executed  out  of  the  limits  of  faid  city.^-^ 
"Which  is  an  affignment  of  error  in  law,  and 
triable  only  by  iflue  in  law. 

Second,  The  defendant  in  error,  by  protefla- 
tion  that  faid  fa6ls,  by  the  plaintiffs  in  error  af- 
figned, are  not  true,  faith,  that  faid  errors  in 
fad  contain  only  the  fubftance  of  a  plea  to  the 
jurifdi8:ion  of  faid  city  court,  which  the  plain- 
tiffs in  error  ought  by  law  to  have  pleaded  and 
excepted  againfl  before  faid  city  court,  and  ha- 
ving then  waved  the  fame,  they  cannot  by  law 
affign  faid  matters  in  error ; — and  that  faid  er- 
rors affigned  are  in  contradidion  of  the  record. 

Third,  That  faid  affignment  of  error  in  law, 
alledging  that  it  does  not  appear  by  faid  record 
that  faid  note  was  executed  in  faid  city  of  Mid- 
dletown, but  that  the  fame  was  executed  out  of 
the  limits  of  faid  city,  is  an  allegation  contrary 
to  faid  record,  and  cannot  by  law  be  affigned  in 
error. 

Fourth,  That  no  matter  or  thing,  in  faid  writ 
of  error  affigned,  is  fufficient  to  warrant  the  re- 
verfal  of  faid  judgement. 

On  argument  of  this  cafe,  by  Mr.  Farfons  3ind 
Mr.  Trumbull,  for  the  defendant  in  error,  and 

by 


County  OF  Hartford,  March  Term.  29 

by  Mr.  Ingey-foll  and  Mr.  Chauncey  for  the  plain-    ^"^1! 
tiffs,  judgement  was  reverfed.  ==r==r=: 

^^  Dyer,  Sherman  and  Pitkin,  Judges.   Wooft.&c, 
1.  When  an  aQ;ion  is  brought  before  any     pf,.^^^^ 
court  of  limited  and  inferior  jurifdiftion,  the 
declaration  ought  to  aver  exprefsly,  that  the 
caufe  of  aQion  arofe  within  the  jurifdi8:ion  of 
the  court  ;§  and  the  place  fhould  be  particular-  ^l    ^^ % 
ly  alledged:  Neither  of  which  was  done  with  j^j^. 
fufficient  certainty  in  the  prefent  cafe.     The 
note  on  which,  &c.  is  alledged  to  have  been 
executed  in  the  city  of  or  ef aid ; — the  city  of  New- 
Haven,  and  the  city  o{  Middletown,  having  been 
both  before  mentioned — therefore  uncertain  to 
'which  the  reference  was  intended.— (^'ee  Coke  on 
Littletony  20,  a.) — "  If  a  leafe  for  life  is  made 
**  to  A.  remainder  in  tail  to  B.  remainder  to  C- 
**  informa  prcediBa,  the  remainder  to  C,  is  void 

**  for  uncertainty."t This   author  makes  a  t  2  Id. 

diftin8;ion  between  prxdiEia,  and  fome  other  re-  ?j?/"^  g"^* 
lative  terms,  which  he  fuppofes  commonly  refer  judgment* 
to  the  laft  antecedent;  but  that  the  rule  admits  arreftedfor 
of  many  exceptions.* — If  fuch  an  uncertain  re-  a  like  un- 
ference  would  render  a  grant  void,  which  would  ^^^^^^^^X' 
be  fupported,  if  by  any  reafonable  conftru8;ion  X  3  Salk. 
it  could  be  made  certain,  it  muft  a  fortiori  be  199* 
fatal  to  a  declaration,  which  is  to  be  conftrued  S^      77" 
moil  ftrongly  againft  the  declarant-     If  the  note     '  '^'  '7« 
had  been  executed  in  the  city  of  Middletown, 
the  allegation  ought  to  have  been  **  in  the  city 
of  Middletown  aforefaidy  within  the  jurifdiBion 
of  the  f aid  court,'* 

2.  The 


*  The  reafon  of  the  diftindion  is,  that  afore/aid^  may 
with  propriety  relate  to  any  term,  that  has  been  before  ufed 
in  the  fame  inftrument  or  writing,  however  remote  ;  hue 
the  other  relative  terms  there  mentioned,  can  only  relate 
to  foriie  word  in  the  fame  fentence. 


30 

17867] 

Woofl.&c. 

againji 

Parfons. 


County  of  Hartford,  March  Term. 

2.  The  note  on  which,  &c.  is  dated  the  yth 
of  June,  1784,  and  the  feflion  of  the  legiflature 
at  which  the  law  was  enabled,  for  incorporating 
the  city  of  Middletown,  ended  the  11th  of  the 
fame  June,  as  appears  of  record  :  And,  there- 
fore, the  caufe  of  a6lion  arofe  before  the  jurif- 
di6lion  of  the  city  of  Middletown  commenced ; 
for  laws  in  this  ftate  are  not  in  force  till  the  end 
of  the  feflion  in  which  they  are  paffed,  unlefs  by 
ipecial  provifion  in  the  ftatute ;  for  during  the 
whole  of  the  feflion,  they  are  fubjeft  to  altera- 
tion, or  to  be  totally  negatived  and  not  entered 
on  record  ;  whereas  after  the  end  of  the  feflion, 
they  become  matters  of  record,  and  cannot  be 
altered  or  repealed,  but  by  a  new  a6l  paflcd  and 
recorded  :  Nor  would  it  be  reafonable  that  peo- 
ple fliould  be  affected  by  laws  before  they  are 
publiftied,  which  is  not  done  (except  in  fpecial 
inftances)  before  the  rifmg  of  the  legiflature. 

3.  As  to  the  exception  in  the  defendants  plea, 
that  errors  in  law  and  errors  m  faB  are  joined  in 
the  writ ;  the  plaintiffs  have  afligned  no  fa8:s  in 
error,  upon  which  they  rely,  but  fuch  as  appear 
of  record :  And  an  aflignment  of  errors  in  JaB, 
not  properly  aflignable,  together  with  fufficient 
errors  in  law,  will  not  vitiate  the  writ. 

Therefore,  the  judgement  of  the  city  court 
was  reverfed. 

Law,  Chief  Jiijlicey  and  Ellsworth,  dijfent-^ 

ing. As  to  the  firft  exception  in  error,  *'  that 

**  the  plaintiff',  in  the  original  fuit,  has  not  aU 
"  iedged,  with  fufficient  certainty,  that  the  caufe 
**  of  a6tion  arofe  within  the  city  of  Middletown." 

The  averment  is,  that  "  the  note  was  execu- 
"  ted  within  the  city  aforefaid,'*  And  the  city 
of  Middletown  was  the  next  antecedent.  And 
the  rule  in  pleadings,  as  in  grammar,  is,  that 
relation  muff  always  be  to  the  next  antecedent, 
unlefs  the  fenfe  hinders;  which  in  thisinftance 

cannot 


County  or  HARTPORDy  March  Term.  31 


cannot  be  pretended.— F^rJr^/5,   77—3.  SaU        ^-gg^ 
keld^  199.     It  has  formeriy  been  held  by  feme     =:==:=3s 
that  prcediBum  was  of  lefs  certain  relation  than  V/ooll.  &c. 
idem-,  but  there  appears  no  reafon  for  the  dif-     pfjf^Q^;^; 
tin6lion,  and  it  hath  not  been  kept  up.     And  in 
Rhodes  and  Coles  cafe,  2.  Lord  Raymond,  886^ 
which  turned  upon  the  reference  of  prcediciiim 
or  a/orefaid,  Chief  Jujiice  Holt  held  it  mufl  be 
to  the  next  antecedent;  and  the  cafe  was  final- 
ly adjudged  according  to  his  opinion.     Cer- 
tainty, to  common  intendment,  is  fufficient  in 
fupport  of  a  judgement;  for  Jemper prefiimiter 
pro  fententia, — And,  though y^rwer^  the  courts* 
of  Weftminfter-hall  would  prefume  nothing  in 
favour  of  inferior  jurifdiftions,  or  the  regularity 
of  their  proceedings,  of  late  years  they  have 
prefumed  liberally  in  fupport  of  them. — i,  Ld-- 
Raymond,  80 — and  Cowper  1 8. 

With  regard  to  the  fecond  exception,  **  that 
"  the  caufe  of  a8:ion  arofe  befor©  the  city  of 
"  Middletown  was  incorporated.'* — 

The  a8:  of  incorporation,  as  appears  from  the 
journals  of  the  Houfe  of  Affembly,  paiTed  and 
was  compleated  the  24th  day  of  May,  fourteen 
days  preceding  the  date  of  the  note  :  And  it  was 
afterwards  revocable  only  as  every  ftatute  is, 
by  a  concurrence  of  both  branches  of  the  Legi- 
flature.     And  altho'  had  it  been  a  penal  or  man- 
datory aft,  it  would  not  have  fo  had  effe6:  as  to 
become  obligatory  on  the  citizens  of  the  (late 
•  at  large,  until  they  had  had  means  of  the  know- 
ledge of  it,  which  ordinarily  would  not  have 
been  till  the  rifmg  of  the  Affembly,  and  the  re- 
turn of  their  reprefentatives ;  yet  being  in  na- 
ture of  a  grant,  and  there  being  no  time  men- 
tioned therein  when  it  fliould  begin  to  take  ef-^ 
feft,  it  took  effeft  immediately;  and  the  jurif- 
diftion  it  gave  of  fuits,  where  the  caufe  of  ac- 
tion ''Jlioiild  arife;'  Sec,  has  relation  to  the  time 

.       of 


32  County  of  Hartford,  March  Term. 

inSSl     of  the  ad's  pafling; — unlefs,  according  to  the 
r=zJ==     Britifh  rule  of  conftruing  ftatutes  in  fuch  cafes, 
Wooft.&c.  it  Ihall,  in  amplification  of  the  grant  or  autho- 
vitioni      '^^^*  ^^^^  relation  to  the  firft  day  of  the  feffion 
in  which  it  palfed. — i  Roll,  Abr.  465 — 4  In/l» 
25,  27 — Hob.  309.     As  to  the  objeftion  to  this 
conftrudion  of  the  aft,  that  it  may  fubjeft  caufes 
to  the  decifion  of  a  forum  which  the  parties,  at 
'^    the  time  the  caufe  of  aftion  arofe,  did  not  con- 
template— it  is  of  very  little    weight; — ^as   it 
does  not  affeft  the  rule  or  principles  of  the  de- 
cifion : — And  it  has  been  always  difregarded  by 
the  legiflature  in  the  inftitution  of  new  courts  ; 
even  where  they  have  gone  fo  far  as  to  change 
the  mode  of  trial  from  a  jury  to  a  fingle  minifter, 
as  in  the  late  enlargement  of  the  jurifdiftion  of 
juftices  of  the  peace. 

It  appears,  therefore,  to  us  from  the  record, 
that  the  caufe  of  aftion  arofe  within  the  jurif- 
liiftion  of  the  city-court ;  both  in  point  of  time 
and  locality  ; — and  that,  that  court  did  not  err 
in  taking  cognizance  of  the  caufe. 


Huntington 


County  of  Windham,  March  Term*  33 

Huntington  againjl  Jones. 

ERROR  from  the  court  of  common  pleas.  S'^is  af- 
The  cafe  was,  Jones  recovered  judge-  %ned  in  fer- 
ment againft  Ilimtington,  in  an  aftion  of  trover,  charge  ofhL 
had  execution,  and  committed  him  to  goal. —  pj^^^  f'^-  -^- 
Huntington  was  a  poor  prifoner,  and  unable  to  rmifi  limit 
difcharge  the  debt. —  7 ones  preferred  his  peti-  tbe^ervjceio 

o  J  r  .  ^^  the  perfoii  of 

tion  to  the  court  or  common  picas,  that  Hun--  them^fter 

tington  mJght  be  affigned  in  fervice  a  fufficient  Jj^J^gJ  JnTit 

length   of  time  to  fati^fy  faid  execution,  and  to  his  heirs 

additional  coft. — The  petition  w^as  founded  on  ^"^  "^^^^ 

that  part  of  the  ftatute  concerning  arrejis  and  ifii- 

prifonment^  which  ena6ls,  *^  That,  if  no  other 

**  means  can  be  found  to  pay  the  debt  for  which 

*'  fuch  debtor  is  imprifoned,  the  debtor  iliall  fa« 

*^  tisfy  the  fame  by  fervice,  if  the  creditor  defire 

*^  it,  and  the  court  iliall  judge  it  reafonable  1  in 

*^  which  cafe  the  fuperior  or  county  court  fnall 

^^  have  power  to  order  and  difpofe  of  fuch  debtor 

*^  in  fervice,  for  the  purpofe  aforefaid,  to  fome 

*^  inhabitant  of  this   ftate,  whether  the  execu- 

*'  tion  by  which  he   is  held  iifued  from  fuch 

^^  court,  or  not. 

*^  Provided  always,  that  no  court  in  this  ftate 
*^  fhall,  in  any  civil  cafe,  affign  or  difpofe  of 
'^  any  perfon  in  fervice,  until  fuch  court  is  fa- 
"  tished,  by  the  oath  of  the  parties  or  other- 
''  ways,  that  faid  debtor  hath  not  ePtate  fLiflici- 
"  cient  to  pay  the  debt  for  which  he  is  holden 
'*  by  execution,  except  fuch  necelfaries  as  are 
'^  by  law  exempted  from  being  taken  by  execu- 
*'  tion  ;  and  the  debt  for  which  he  is  holden  is 
"  really  and  bona  Jide  due,  on  good  coniider- 
"  ation." 

Huntinfrfon,  and  his  other  judgement  credi- 
tors, upon  whole  debts  he  was  likewife  impri- 
E  foncd. 


ones. 


34  County  or  Windmam,  March  Term, 

"^^86?     fo^^<^>  moved  that  Jones's  petition  might  not 

=:====     be   granted :   They   urged,  that    each   creditor 

Hunting-    had  an  equal  right  to  the  fervice  of  the  debtor; 

^°."  g,      that  his  life  being  uncertain  if  preference  fhould 

be  given  to  onty  the  omtr  creditors  might  lole 

their  debts. — Huntington  fiiggefted  to  the  court, 

that  the  judgement  of  Jones  againft  him  was  un- 

juftly  obtained,  and  moved  that  both  might  be 

examined  under  oath,  as  to  the  juilice  of  the 

debt;  which  the  court  refufed,  and  difpofed  of 

Huntingtony  in  fervice  to  JoneSy  the  creditor, 

his  heirs  and  affigns,  for  the  term  of  two  years 

and  fix  months,  tn  difcharge  of  the  debt. 

Six  exceptions  in  error  were  taken  to  this 
decifion  of  the  court  df  common  pleas : — 

1.  That  the  court  ought  not  to  have  affigned 
him  in  fervice  for  the  debt  of  Jones  only,  when 
he  w^as  confined  in  prifon  by  force  of  other  judg- 
ments in  favour  of  other  creditors. 

2.  That  agreeably  to  the  juft  conflrudion  of 
the  flatute,  regulating  the  proceedings  in  fuch 
cafes,  Huntington  had  right  to  tellify  under  oath, 
and  to  an  examination  of  th€  adverfe  party  re- 
fpe6ling  the  juftice  of  faid  original  demand; 
which  was  denied  in  this  cafe. 

3.  That  it  was  not  agreeable  to  the  true  fpirit 
and  meaning  of  the  flatute,  that  Huntington,  un- 
der the  circumflances,  fliould  have  been  affign- 
ed in  fervice. 

4.  That  the  court  erred  in  extending  the  fer- 
vice to  fuch  a  length  of  time. 

5.  That  the  firfl  judgement  was  rendered  in 
an  adion  of  trover,  for  the  fatisfaftion  of  which, 
the  law  will  not  juftify  an  affignment  in  fervice. 

6.  That  the  court  erred  in  affigning  faid  Hun- 
tington to  the  heirs  and  affigns  of  faid  Jones. 

On  the  laft  error  alledged,  the  judgement 
was  reverfed :  For, 

By 


County  of  Windham,  March  Term, 

By  the  whole  Court. — — The  binding 
here  is  not  only  to  the  perfon  named,  but  alfo 
to  his  heirs  and  ajjigns :  Whereas,  by  the  ftatute, 
the  right  of  fervice  is  perfonal,  and  extends 
only  to  the  mailer  named  and  approved  by  the 
court,  who  are  to  regard  as  well  the  condition 
and  character  of  the  perfon  to  whom  the  affign- 

ment  is  made,  as  of  the  perfon  affigned. • 

The  provifion  of  law  for  affigning  debtors  in 
fervice  being  an  abridgment  of  perfonal  liberty, 
requires  caution  in  exercife,  and  is  not  to  be 
enlarged  by  implication. 


35 

Huntingt. 
againji 
Jones. 


Thomson  againfciW ai.e^  and  Moor. 

ERROR  from  the  court  of  common  pleas. 
Thomfon  brought  his  aftion  of  book- 
debt  againft  Tf'''<3:/dy  and  Moor,  adminiftrators  on 
the  eftate  o^  James  McNeil,  declaring  for  a  debt 
of  20/.  and  demanding  in  damage  24/.^ — Tiie 
general  iffue  was  plead^  and  judgement  for  the 
defendant. — The  plaintiff  moved  for  an  apped, 
W'hich  was  denied. 

The  error  affigned  was,  that  the  fum  demand- 
ed being  more  than  20/.  the  plaintiff  was  enti- 
tled to  an  appeal ;  for  the  court  could  not  de- 
termine that  the  jury  would  not  find  more  than 
20/.  or  even  the  whole  fum  demanded,  in  da- 
mage. 

Judgement  affirmed. 

By  the  Court. No  appeal   lies.     TlTfe 

words  of  the  ftatute  granting  appeals,  are,  "  in 
"  which  the  value  of  the  debt,  damage,  or  mat- 
*^  ter  in  difpute,  doth  exceed  the  value  of  20/. 
"  &c.'*— In  this  cafe  the  debt  demanded,  which 
is  laid  at  20/.  only,  is  the  matter  in  difpute ; 
E  2  And 


No  appeal 
lies  from  the 
decifion  of  a. 
lover    coiirc 
on  a  book 
debt  adion, 
if  the  fum  al- 
ledged  as 
debt,  does 
not  exceed 
twenty 
pounds,    al- 
though the 
fum  deman- 
ded in  da- 
mages,    ex- 
ceed that 
fum. 


786. 


36  County  of  Windham,  March  Term. 

and  the  conclufion  in  damages  but  a  matter  of 
form.     And  if  interefl  is  to  be  challenged  in  an 
Thomfoa    a6lion  of  book-debt,  it  is  regularly  to  be  char- 
Walef      ged,'and  made  parcel  of  the  debt  alledged,  that 
the  adverfe  party  may  have   notice  of  it  upon 
oyer;  and  we  have  no  pra6lice  of  entering  a 
judgement  for  a  fum  in  debt,  and  a  further  fum 
for  intereft  or  damages,  for  the  detention  of  the 
debt.     The  20/.  the  fum  alledged  as  debt  in 
-this  cafe,  is  all  that  judgement  could  have  been 
-given  for,  and  v/as  the  whole  matter  in  difpute. 
Judge  Dyer — dijfentmg.. The  ftatute  li- 
mits to  a  final  decifion  of  the  court  of  common 
pleas,  fueh   a6lions  wherein  the   matter  in  de- 
mand does  not  exceed  the  value  of  20/. — The 
magnitude  of  the  demand,  is  to  be  afcertained. 
by  the  jiiry^    and  not  by  the  courts  unlefs  by 
agreement  of  parties ;  and  fmce  the  plaintiff,  in 
this  action,  has  demanded  a  fum  for  intereft  or 
damage,  exceeding  the  ftated   debt,  the  quef- 
tion,  whether  he  fhall  recover  more  than  the 
debt  fo  ftated,  he  has  a  right  to  have  determi- 
ned by  jury;  and  until  that  is  determined,  the 
court  cannot  legally  deprive. the  party  of  an  ap- 
peal. 


Backus  againjl  Cleaveland. 

An  cxifting  'TpHIS  was  a  fcive  facidSy  for  the  affirmance 
gaTnftthe        X     of  a  judgement  againft  the  defendant,  as 
,cftAte  of  a     adminijlrator  on  the  eftate  o[  Aron  Cleaveland, 
periorff  im-       The  defendant  pleaded,   that  the  court  of 
deriuchcir-  probate  iffued  an  order,  that  within  a  limited 

thT  thc"a-  time  all  claims  againft  faid  eftate  ftiould  be  ex- 
mount  can- 
not be  afcer-  ,  .,  ■  •  l  i  •  c 
tained  within  the  time  limited  by  the  court  of  probate  for  exhibiting  the  claims  ot 
creditors  to  fitch  eftate;  fuch  claim  is  not  foreclofed,  but  may  he  exhibited  and 
recovered  afcer\rardsj  if  thg  adminiflrator  have  eftate  in  his  h^nds. 


Coui^TY  OF  Windham.  MaPvCh  Term. 


37 


hibited  to  the  defendant,  or  be  forever  barred  j     ^^"5^ 
and  that  due  notice  thereof  had  been  given  to     =■-== 
the  plaintiff,  but  he  did  not  exhibit  his   claim     Backus 
within  the  term  limited.  ^S^'^^^J^ 

The  plaintiff  replied,  that  he  brought  his  writ  '^^^'^^^  * 
of  error  againft  the  intejlate  to  the  fuperior  courts 
in  March  1785,  and  obtained  a  reverfal  of  an 
erroneous  judgement  of  the  court  of  common 
pleas. — That  the  intejlate  then  being  in  full  life, 
entered  his  aclion  in  the  docket  of  {diid  fuperior 
courty  which  was  continued  till  September  1785. 
— In  April  1785,  the  faid  Aron  died;  and  at 
faid  September  term,  the  defendant  appeared 
and  moved  for  leave  to  profecute  faid  adion  on 
the  part  of  faid  deceafed,  which  v/as  ailov/ed.' — - 
Said  caufe  was  adjourned  till  December  1785, 
when  final  judgement  was  rendered  in  favour  of 
faid  Aron,  deceafedy  for  forty-nine  pounds  and 
fix-pence  lefs  than  the  fum  of  the  former  judge- 
ment rendered  by  the  court  of  common  pleas^ 
which  had  been  reverfed.-— Which  fum  was  re- 
ftored  to  the  plaintiff  as  his  damage  by  reafon 
of  faid  erroneous  judgement,  and  which  is  the 
demand  in  queflion. — That  this  demand  could 
not  have  been  exhibited  within  the  time  limit- 
ed, becaufe  it  was  then  pending  in  court ;  all 
which  the  defendant  well  knew. — And  that  the 
defendant  now  holds  in  his  Jaands  eflate  of  faid 
deceafed,  much  more  than  fufficient  to  difcharge 
the  prefent  debt. 

To  this  there  was  a  demurrer,  and  joinder  in     ,y.,,-^ 
demuirrer — and  the  replication  was   adjudged  j,     ^^  ' 
fufficient :   For,  Chilton  vs 

By  the  whole  Court. The  amount  of  Whiffin. 

the  plaintiff's  claim  againft  the  eftate  of  the  de-  ^^^^^^^"S^* 
ceafed,  could  not  be  afcertained  until  the  final  Tuliy  vs 
judgement  in  the  caufe  then  pending  before  the  Sparkes, 
fuperior  court,  as  mentioned  in  the  plaintiff's  ^-  ^^^^  , 
reply;  which  judgement  was  not  rendered  un-  \^J^^^^^ 


38 

Backus 

againji 

Cleavland 


a.  Strange, 
1043. 
Hockley 
vs  Merry. 
3.  Wilfon, 
262. 

Goddard 
vs  Van- 
derhevdeii.. 


County  or  Windham,  March  Term. 

til  after  the  expiration  of  the  term  limited  by 
the  court  of  probate  y  for  exhibiting  the  claims  of 
the  creditor3  to  faid  eftate. 

It  appears  by  the  pleadings,  that  the  defend- 
ant well  knew  the  demand  that  the  plaintiff  had 
againft  the  eftate,  and  the  circumftances  attend- 
ing the  fame,  and  that  he  has  fufficient  eftate  of 
the  deceafed  in  his  hands  to  difcharge  it :  There- 
fore the  plaintiff  is  not  by  law  foreclofed  from  re- 
covering his  debt  according  to  the  true  intent  of 
the  ftatute  in  that  cafe  provided. 

N.  B.  This  judgement  was  afterwards  affirm- 
ed in  the  fupreme  court  of  errors* 


Adams  againji  Cleave  land. 

IN  this  cafe  the  fame  point  was  determined  as 
in  the  cafe  of  Backus  againft  Clcavelaiid,  on 
fimilar  pleadings. 


After  the  a- 
verage  is 
ilruck  on  an 
infolvent  ef- 
tate, no  future, 
intereft  can 
arife  on  fuch 
average,  as 
relative  to 
the  eftate  s 
but  jf  the  ad- 
miniftrator 
fo  condut^  as 
to  fubjeft 
himfclf  per- 
fonallytothe 
payment  of 
intereft,  the 
aftion  muft 
be  brought 
accordingly. 


F I T c H  againji  Yi untington . In  Error. 

HUNTINGTON  brought  his  aBion  to  the 
court  of  common  pleas,  on  a  promiifory 
note,  digdiin^  Fitchy  adminiftrator  on  the  eftate 

of  Azel  Fitch,  deceafed. Fitch'  pleaded  in 

abatement,  that  the  eftate  of  faid  deceafed  was 
duly  reprefented  infolvent  (and  in  fa8:  proved 
unable  to  pay  more  than  one  fhilling  and  fix- 
pence  on  the  pound.) — -That  commifTioners 
were  duly  appointed  to  receive  and  examine 
the  claims  upon  faid  eftate,  who  gave  notice  of 
their  appointment  and  powers,  according  to 
law ;  and  that  the  plaintiff  neglefted  to  exhibit 
his  demand,  until  the  expiration  of  faid  com- 

miffion. 


ton. 


County  OF.  Windham^  March  Term.  39 

miffionj  and  a  final  fettlement  and  quietus  was     ^^357 
granted  upon  faid  adminiftration.  ==^= 

The  plaintiff  replied,  that  in  January  1770,  Fitch 
he  exhibited  his  faid  claim  to  the  commiffioners  t^gawfi 
on  faid  eftate,  in  the  life  of  their  commiffion,  'mn"^" 
who  allowed  the  fame,  and  made  return  there- 
of to  the  court  of  probate ;  which  return  w'as 
accepted  by  the  faid  court. 

Upon  the  faQs  ftated  in  the  replication,  ilTuc 
was  joined ;  and  a  verdi6:  for  the  plaintiff.  Mr. 
Larrahee  and  Mr.  BiJJ'cl  moved  in  arreft,  and 
for  caufe  alledged — 

1.  That  the  jury,  in  their  affeffment  of  da- 
mages, had  allowed  to  the  plaintiff  the  intereft 
on  the  average  fum  of  his  debt,  from  the  time  it 
was  prefented  to  the  commiffioners ;  which  w^as 
illegal. 

2.  That  the  original  note  on  which,  &c.  ha- 
ving been  exhibited  to  the  commiffioners,  and 
by  them  allowed  and  afcertained  againft  the 
eftate  of  faid  deceafed,  no  aftion  is  now  fuftain- 
able  on  faid  original  note. — And  that  there  can 
be  no  foundation  in  law,  for  a  recovery  of  da- 
mages by  the  plaintiff,  but  upon  a  negled  of 
payment  by  the  defendant,  as  adminiftrator. 

Mr.  Swift  and  Mr.  Spalding  replied,  that  the 
demand  againft  the  eftate  of  faid  Azel  decea- 
fed, was  a  note  of  hand  on  intereft,  and  that  faid 
average  ought  to  have  been  paid  in  the  month 
of  January  1770,  but  the  defendant,  regardlefs 
of  his  duty  as  adminiftrator,  took  all  the  eftate 
into  his  poffeffion,  and  had  ever  fmce  had  the 
ufe  and  benefit  thereof,  and  had  always  refufed 
to  difcharge  faid  debt ;  and  that  the  jury  allow- 
ed no  more  than  the  lawful  intereft  of  the  plain- 
tiff's average  from  the  time  it  ought  to  have 
been  paid. 

The  court  of  common  pleas  eftabliffied  this 
verdift,  and  rendered  judgement  thereon. 

Judgement  was  reverfed.  By 


40 


1786. 

Fitch 

again/} 

Huntingt, 


County  of  Windham,  March  Term* 

By  THE  WHOLE  CouRT. Intercft,  upon 

the  plaintiff's  average,  was  allov/ed  out  of  the 
eflate  of  the  deceafed.  This  would  work  injuf- 
tice  to  the  other  creditors,  who  would  thereby 
be  cut  fhort  of  their  average. — If  an  admini- 
ftrator  upon  an  infolvent  eftate,  after  the  ave- 
rage is  ftruck,  makes  himfelf  liable  for  intereft, 
it  is  his  0W71  ejlate  he  fubje6ts,  and  not  that  of  the 
deceafed ;  ajid  the  adion  and  judgement  fliould 
accord  with  the  circumftance  of  the  adminiftra- 
tor's /?nyon^/ liablenefs. 


Goods  arc 
taken  b/  ac- 
tachment 
and  deliver- 
ed to  B.  he 
promifes    to 
re-deliver 
them  on  de- 
snandi  it" 
rhey   be   not 
demanded 
%rithin    /Ixtjr 
flays  after  fi 
nal  judgment 
in  the  a.et\on 
on  which 
they  are  at  • 
tached,  B. 
may    rellore 
them  to  the 
original 
ovner,  and 
shall   not  be 
liable  on  his 
promife  to 
the  oSicer, 


BuEL  againjl  Metcalf.- In  Eri'or, 

METCALF  brought  his  a8;ion  againft  Buely 
to  the  court  of  common  pleas,  on  a  re- 
ceipt executed  by  the  defendant  to  the  plaintiff, 
as  conftable,  for  goods  taken  by  attachment, 
containing  a  promife  to  re-deliver  faid  goods  on 
demand,  for  the  purpofe  of  refponding  the  judg- 
ment on  the  writ  of  attachment. 

The  defendant  pleaded,  that  he  held  faid 
goods,  and  was  ready  to  re-deliver  them  to  the 
plaintiff  at  all  times,  until  the  expiration  of 
more  than  fixty  days  after  final  judgement  on 
faid  writ  of  attachment ;  that  no  demand  was 
made  for  faid  goods,  and  in  confequence  of 
the  premifes,  he  rellored  them  to  the  original 
owner. 

On  demurrer  to  this  plea,  judgement  was 
rendered  for  the  plaintiff. 

The  plaintiff  in  error  took  two  exceptions  to 
this  judgement — 

1.  That  the  declaration  was  iiirufPicient,  as  it 
appeared  from  the  face  of  it,  that  execuuon  was 

not 


County  of '"Wind ham,  March  Term. 

not  iffued  till  more  than  fixty  days  after  final 
judgement  was  rendered,  and  therefore  the  ef- 
tate  taken  was  difchargcd^  and  the  defendant 
not  holden  to  deliver  it. 

2.  That  the  plea  contained  ample  matter  to 
difcharge  the  defendant  from  his  liability  to 
faid  fuit. 

The  judgement  was  reverfed. 

By  the  whole  Court.— — >The  execution 
was  not  taken  out  till  more  than  iixty  days  after 
the  judgement,  beyond  the  expiration  of  which 
time  the  attachment  could  not  hold  the  proper- 
ty, and  it  became  thereupon  the  duty  of  the  of- 
ficer, or  of  whoever  held  the  property  undef 
him,  to  reflore  it  to  the  debtor  (as  the  receipt- 
man  has  done)  and  he  would  have  been  liable 
in  trover  had  he  refufed. 


4t 

Buel 
againji: 

Me  teal  f. 


¥>.iMB  Ahh -againjl  Cady, 

ERROR,  from  a  decree  of  the  court  of  com- 
mon pleas,  on  a  petition  for  a  new  trial. 
Kimball  brought  his  afilion  againd  Cady  on 
a  promiflary  note  to  the  court  of  common  pieas 
in  Auguft  1781. — The  defendant  pleaded  a  ten- 
der made  in  April  1779. — The  plaintifl  replied, 
that  the  money  tendered,  and  now  offered,  con- 
fifled  of  continental  bills  of  credit^  which  were 
not  at  the  time  of  tender,  and  have  never  fmce 
been,  at  the  value  of  one  thirtieth  part  of  the 
debt  contracted  and  promifed  in  faid  note. 

To  this  there  was  a  demurrer,  and  judgement 
for  the  defendant. 

Kimball,  the  plaintiff,  petitioned  for  a  new 
trial.     He  relied  on  the  ftatute  paffed  in  O6I0- 

F  ber 


A  petition 
for  new  trial 
is  matter  of 
d  fcretion 
witU  the 
court  to 
wh,  chit  is 
p referee),  to 
grant  or  ne- 
gative J 
therefore  Er- 
ror cannot 
be  predica- 
ted on  fueh 
decifion. 


4-2  '^  County  of  Windhajvi,  .  Mar,ch:Term. 

"^TsIT     ^^^17^2,  which  ena6ls,  "  That  in  all  aBions 

~^^     "  brought  before  any  of  the  fuperior  or  county 

Kimball  "  courts  in  this  ftate,  (either  by  originanvrit, 
agahi^  "  appeal,  or  writ  of  error)  for  the  recovery  of 
^  '^'  "any  debt  due  by  bond,  note,  or  book  account, 
'^.contrafted  before  or  on  the  feventh  day  of 
"  of  January,  1780,  and  where  the  defendant  in 
"  fuch  aftion  has,  between  th^  firft  day  of  6"^/;- 
"  iember,  1777,  and  the  18th  day  of  March, 
■"  1780,  made  a  tender  of  a  fum  in  continental 
'*  hills  of  credit,  to  the  creditor  or  creditors,  in 
*'  fatisfadion  of  the  debt  demanded,  and  the 
"  creditor  refufed  the  fame  ;  then,  and  in  every 
*^  fuch  cafe,  the  court  before  w^hom  each  aQion 
*^  may  be  brought,  are  hereby  authorized  to  di- 
**  reft  fuch  cafe  to  be  heard  and  determined  by 
*^  reference  thereof  to  indifferent  perfons,  to  be 
"  mutually  chofen  by  the  contending  parties ; 
"  and  in  cafe  they  or  their  attornies  fhall  negle6l 
"  or  refufe  to  agree  on  luch  references,  the  faid 
"  court  are  authorized  to  determine  fuch  caufe 
^*  according  to  the  rules  of  equity,  taking  all  cir- 
"  cumftances  into  confideration  :  Which  faid 
"  referees  fo  cliofen  as  afore  faid,  fliall  hear  and 
"'determine  fuch  caufe,  as  to  them  fhall  appear 
"jufl  and  equitable,  taking  into  confideration 
"  all  the  circumftances  thereof,  and  make  re- 
"  turn  to  the  fame  court  where  faid  caufe  fhall 
"be  depending;  who,  unlefs  fufficient  objec- 
"  tions  be  offered  againft  fuch  return,  fhall  ac- 
"  cept  the  fame,  and  render  judgement  thereon 

"  accordingly.' -And  on  this  ground  he  al- 

ledged,  that  a  repleader  ought  to  be  granted; 
for  that  he  had  miflook  his  plea,  in  that  he 
did  not  traverfe  the  defendant's  plea  in  bar,  and 
thereby  open  the  fubjeft  of  enquiry  at  large,  to 
the  court. — That  the  flatute  enables  the  court, 
in  fuch  cafe,  to  give  the  caufe  an  equitable  con- 
fideration, and  adjudge  to  the  plaintiff  what  was 

equitable 


County  of  Windham,  March  Tfrm.  43 

equitable  and  jull,  notwithftanding  the  tender.     "^Tgg; 
Three  exceptions  were  taken  to  this  petition,     =====;J: 
at  the  court  of  common  pleas,  by  way  of  abate-    Kimball 

ment: —  ""r^A^ ' 

1.  That  the  petitioner  had  not  laid  a  profert  ^* 
of  the  legal  proceedings  mentioned  in  his'  peti- 
tion. 

2.  That  nothing  appeared  by  the  petition, 
but  that  compleatjuftice  had  taken  place. 

3.  That  the  ftatute  mentioned  in  the  petition 
did  not  exift  until  long  after  the  final  trial  1 
therefore  not  applicable  to  this  cafe. 

The  exceptions  were  adjudged  fufficient,  and 
the  petition  difmiffed :  And  the  decree  of  the 
court  of  common  pleas  being  examined  on  this- 
writ  of  error,  was  affirmed. 

By  the  whole  Court. — —There  are  tv/c^ 
grounds  for  affirming  the  decifion  of  the  court 
of  common  pleas  : — 

1.  If  the  petition  was  for  a  new  trial,  it  was 
matter  of  difcretion  with  the  court  to  which  it 
was  preFered,  to  grant  or  negative,  and  error 
cannot  be  predicated  upon  fuch  decifion. 

2.  The  petition  cannot  be  fuftained  on  the 
ftatute  for  the  equitable  decifion  of  tenders  in 
certain  cafes,  as  there  had  been  a  judgement  at 
law  :  For  the  provifion  of  the  ftatute  extends 
not  to  cafes  adjudged  and  clofed  at  law,  but  to 
cafes  open  and  profecuting  at  law,  and  is  ex- 
prefsly  limited  to  a6lions  pending  hj  original 
writ,  appeal,  or  writ  of  error.'— An  extenfion  of 
the  ftatute  retrofpe8:ively  to  overthrow  judge- 
ments that  have  been  rendered  and  acquiefced 
in  at  law,  would  be  very  inconvenient,  and  the 
words  of  the  ad  will  not  admit  of  fuch  a  con- 
ftru6lion. 


F2  Rogers 


44  County  of  New-London,  March  Term. 


786. 


Rogers  againjl  H  £  m  s  t  e  d  a7id  Others. 


In  cafe  of  a  ^  |  '*HIS  v/as  an  adion  on  a  written  agreement 
t^'erTidibc^a  -^  bctwecn  the  plaintiff  and  defendants,  fta- 
difchar-e  to  ting,  **  That  whcrcas  they  were  jointly  con- 
Srbtosfir  "  cerned  in  the  capture  of  a  fmall  boat  and  fe- 
K''d°b  '^  "  veral  cattle,  in  April,  1783,  which  were  li- 
oniy  ad't-  *^  beled  and  condemned  to  the  ufe  of  the  cap- 
£uh^^  °^  "  ^^^^*  ^^^  diftribution  made  accordingly : — 
isdcfcr.bed,  "  They  therefore,  jointly  and  feverally  engaged 
fond^ciFaT'  "  ^^  P^y  ^^^  plaintiff  (in  whofe  name  faid  con- 
ged,  asweu  "  demnation  was  had)  their  refpeftive  propor- 
debwrrare    '^  ^^ous  of  any  future  expence  that  might  arife  in 

iiiii  liable     «  the  premifes." Subfequent  to  this  agree-* 

^aj^d/r!'  nient,  one  Randal  claimed  the  property  of  the 
boat  and  cattle  mentioned  in  the  writing ;  for 
which  he  inftituted  a  fuit  againft  the  plaintiff, 
and  recovered  about  fixty  pounds. — This  ac- 
tion was  brought  to  recover  of  the  defendants 
their  refpedive  proportions  of  faid  expenditure. 
The  defendants  pleaded  a  difcharge  from  the 

plaintiff,  which  was  recited  in  thefe  words 

"  Received  of  Daniel  Harris  twenty  eight  filver 
"  dollars,  on  account  of  a  boat  and  cattle  taken 
"  from  Randal  the  4th  of  April,  1783,  and  con- 
"  demned  to  faid  Rogers,  and  fmce  faid  Randal 
"  has  got  an  execution  againft  faid  Rogers  for 
"  lixty  feven  pounds ; — and  this  is  Daniel  Har-^ 
**  ris*s  receipt  for  his  part  of  faid  execution." 

To  this  plea  the  plaintiff  demurred  general- 
ly.  And, 

By   the   whole   Court.         This  plea  is 

infufficient. This  receipt  was  not  in  full  of 

the  execution,  but  only  of  fuch  part  or  propor- 
tion of  it  as  Harris  bad  received  of  the  proper- 
ty condemned.  He,  with  the  reft  of  the  de- 
fendants, as  they  were  jointly  and  feverally 
bound  f  ^r  each  others  like  proportions,  remain- 
ed holden  for  the  rciidue  uf  the  execution. 


County  of  New-London^  March  Term.  45 

Huntington  a7id  Others  againjl  Cakvei^ter, 

THIS  was  an  a£lion  of  diffeifin,  brought  by 
the  inhabitants  of  the  town  of  Norwich, 
againft  the  defendant,  as  Icffee  of  the  firft  eccle-  1 

fiaftical  fociety  in  faid  town. — On  fpccia!  plead- 
ings, the  cafe  was  thus  dated  for  the  deciiion  of 
court : — — 

The  town  of  Norwich,  before  the  year  1695, 
conftituted  but  one  parifh  or  ccclefiaftical  fo- 
ciety ;  and  the  inhabitants  tranfaQ;ed  their  town 
and  parochial  buiinefs  at  the  fame  meetings.  In 
June,  1765,  they  appointed  a  committee  to  pur- 
chafe  lands  for  the  ufe  and  accommodation  of 
a  gofpel  minifter  amongfl;  them:  The  commit- 
tee purchafed  of  Stephen  Gifford  the  lands  ia 
queftion,  and  took  a  deed  of  bargain  and  fale^ 
expreffed  to  be,  "  to  the  inhabitants  of  the  torjjn 
^*  of  Norwich,  their  heirs,  fucceffors  and  af^ 
"  figns/*  In  December^  1697,  the  inhabitants 
of  the  town,  by  a  vote,  levied  a  tax  on  them- 
felves,  for  the  purpofes  of  difchargiog  the  mi- 
nifter's  falary,  paying  for  the  land  purchafed  of 
Gifford,  and  defraying  other  parifh  charges. 

The  lands  in  quedion  were  immediately  ap- 
plied to  the  ufe  for  which  they  were  purchafed, 
and  have  ever  fince  been  applied  to  the  ufe  of 
the  miniftry  in  the  firft  fociety  in  Norwich. — 
The  inhabitants  of  the  town,  by  vote,  in  De- 
cember, 1701,  fequeftered  for  the  ufe  of  the  mi- 
niftry,  other  lands  adjoining  the  lands  in  quef- 
tion,  and  gave  the  whole  the  name  of  the  Par- 
fonage  Lot. — In  1716,  by  ad  of  aflembly,  two 
other  ecclefiaftical  focieties  were  incorporated 
from  the  town  of  Norwich,  called  the  Sajl" 
Farms  and  the  We/l^Farms;  after  which  (to  wit) 
in  July,  1717,  Mr.  Benjamin  Lord  was  fettled 
in  the  miiiiitry  in  the  old  or  firft  fociety  in  faid 

town ; 


toa,  ctTc 

againjf 

Carpente 


46.  County  of  New-London,  March  Term. 

""17867  ^Q"^";  ^^d  in  Auguft,  1717,  the  faid  fociety,  by 
=====  vote,  granted  to  him  the.  lands  in  queftion,  for 
Hunting-  \}l\^  term  oF  his  minifjry;  which  he  held  until 
the  time  of  his  death,  which  happened  in  April,- 
1784. 

The  proprietors  of  the  townfhip  of  Norwich; 
in  fundry  legal  meetings,  did  grant,  lay  but,  and 
iequefter,  fundry  trails  of  land  in  the  focieties 
of  the  Eaft  and  Weft  Farms,  for  the-fupport  cf 
the  miniftry  in  thofe  two  pariflies. 

That  the  defendant  hQlds  the  demanded  pre- 
mifes  by  force  of  a  leafe  from  the  firfl;  ecclefi- 
aftical  fociety  in  Norwich,  for  term  of  years, 
not  yet  expired,  and  bearing  date  before  the 
plaintiffs'  writ. 

There  was  a  demurrer  to  the  replication,  and 
joinder  in  demurrer- — and  judgement  for  the  de- 
fendant. 

By  the  Court. The  inhabitants  of  each 

iOwn  in  this  ftate  (not  divided  into  focieties) 
are  by  law  a  corporation  for  the  purpofe  of  fup- 
porting  public  worfhip,  and  the  gofpel  miniftry, 
as  well  as  for  civil  purpofes ;  and  in  their  cor- 
porate capacity,,  have  power  to  receive  and  hold 
eftates  real  and  perfonal,  for  laid  ufes,  and  to  call 
and  fettle  minifters,  build  meeting  houfes,  &c. 

2.  The  name  and  defcription  by  which  they 
receive  eftates,  and  tranfa6l  bulinefs  in  their  ec- 
cleftaftical  and  civil  capacity,  is  the  fame  (to 
wit)  the  inhabitants  of  the  town  ofy  &c. 

3.  When  part  of  the  inhabitants  of  fuch  town 
are  conftituted  a  new  and  diftin6l  fociety,  the 
remaining  inhabitants  are  by  law  confidered, 
for  ecclefiaftical  purpofes,  as  the  fame  corpora- 
tion, having  continuance  and  fucceffion,  by  the 
name  of  the  jirjl  fociety^  which  before  exifted  by 
the  name  of  the  inhabitants  of  the  town,  and  as 
holding  the  meeting  houfe,  and  all  other  eftates 
that  the  inhabitants  of  fuch  town  received,  ac- 
quired 


County  of  New-LondOxV,  March  Term/  47 

quired  and  held,  for  any  of  the  ufes  for  which     ^TglT 
focieties  are  conftituted,  and  as  bound  taper-     ==r4^r^ 
form  all  the  contrails  and  agreements  made  by .  Honting^ 
the  inhabitants  of  fuch  town,  with  the  minider,     ^^"^  ^'^• 
for  his  fupport,  or  refpeftincr  any  other  matter  ^^s.^''^- 
proper  to  a  iociety. — -1  his  opinion  is  iupported 
by  former  adjudications,  and  univerlal  cuftom, 

4.  In  the  prefent  cafe,  it  appears  from  the  re-, 
cords  of  the  votes  and  proceedings  of  the  town 
of  Norwich,  recited  in  the  pleadings,  that  the 
land  in  queftion  was  purchafed  when  there  was 
but  one  ecclefiaftical  fociety  in  the  town,  with, 
exprefs  intention  to  be  applied  in  fupporting  the 
gofpel  miniftry. — That  the  purchafe  money  was 
coUeQed  in  the  fame  tax  with  the  miniiler's  fa- 
lary :  And  although  the  deed  from  Gifford  does 
not  mention  the  ufe  for  which  faid  land  was  pur- 
chafed, and  contains  fimply  a  fale  and  transfer, 
for  a  valuable  confideration,  as  it  was  out  of  his 
power,  as  grantor,  to  dire6l  the  ufe;  yet  it  ap- 
pears, that  the  grantees  a6ling  in  the  fame  capa- 
city as  when  calling  and  fettling  a  minifter,  ap- 
plied the  ufe  of  faid  land  toward  the  fupport  of 
feveral  fucceffive  minifters  of  the  gofpel,  in  that 
part  of  the  town  of  Norwich  which  is  now  call- 
ed the  firft  fociety,  for  a  term  of  more  than 
eighty  years :  That  it  was  early  called  the  par- 
fon age  land,  and  has  never  been  applied  to  any 
other  ufe  : — And  therefore  ought  to  be  confi- 
dered  as  purchafed  and  held  by  the  fame  corpo- 
ration that  is  now  called  the  firft  fociety  in  the 
town  of  Norwich. 

5.  As  it  clearly  appears,  that  it  was  the  in- 
tention of  the  inhabitants  of  the  town  of  Nor- 
wich (in  whatever  capacity  they  a6led)  to  ap- 
propriate faid  land  for  the  ufe  and  fupport  of 
the  miniftry  in  that  part  of  the  town  now  called 
the  firft  fociety;  and  the  fame  having  been  fo 
appropriated  and  applied  in  manner  aforefaid, 

it 


CarpeRter 


48  County  of  New-London,  March  TiRxM* 

"iVslr     ^^  ought  to  be  confidered  as  an  appropriation  or 
—--'==-=i     fequeftration  to  that  ufe,  according  to  the  an- 
Hunting-    cient  ufage  and  practice,  and  [o  is  confirmed 
con,&c.    by  i\iQ  ftatutc  in  fuch  cafe  provided,  (vid.  flat. 
a^Rtlr   ^oo^>  1 59. )---So  judgement  ^vas  for  the  defen- 
dant, as  he  held  by  leafe  from  the  firft  fociety 
in  faid  Norwich  ;  and  faid  firft  fociety  were  ad- 
judged to  hold  the  lands  in  exclufion  of  the 
town  at  large. 

The  Chif^f  Jujlice  faid,  he  was  doubtful  whe- 
ther all  the  reaibns  affigned  by  the  court  were 
conclufive ;  but  on  the  3d  there  could  be  no 
doubt,  it  being  a  point  fully  fettled  by  former 
adjudications. 

Note. Judge  Dyer  did  not  fit  in  this  cafe, 

being  uncle  to  one  of  the  plaintiffs  ;  and  Judge 
Elljworth  excufed  himfelf,  having  at  a  former 
trial  been  of  counfel  for  the  defendant. 


Avery  againji  W  e  r  m  o  r  e — (Sheriff. ) 

be  Vdfed^  nPHIS  action  was  inftituted  againft  the  fhe- 
jn  aTivif        X     riff,  for  the  default  of  one  of  his  deputies, 
^clxl^^sl'^'  ^y  ^^^^  ^  attachment,  and  the  flieriff's  body 
bateabk.       arrefted. — He  pleaded  in  abatement,  that  du- 
ring his  continuance  in  the  office  of  iheriff,  his 
perfon  was  not  liaWe  to  arrcft  or  imprifonment, 
by  civil  procefs ;  and  for  caufe  alledged,  that  as 
the  fheriff  is  ex  officio  keeper  of  the  prifon,  an 
imprifonment  of  his  perfon  would  operate  as  a 

releafe  to  the  prifoners  of  the  county. On 

the  plea  of  abatement,  the  cafe  was  appealed  to 
the  fuperior  court — and  for  the  reafon  alledged 
in  the  plea  the  procefs  abated. 

It  was  then  contended  on  the  part  of  the  plain- 
tiff, that  the  fuit  ought  to  proceed  as  ^fummon, 

and 


County  of  New-London,  March  I^rm.  4g 

and  to  ceafe  only  in  its  operation  againfl  the     ^Tgg 
perfon  of  the  fheriff.     But  the  Court  faid,  that     ===Z==^* 
the  mode  of  procefs  being  improper,  it  mull     Avery 
abate,  in  toto.  againjl 

Wetmore, 

Note- — The  fubftance  of  this  Report  was  givc^ 
me  by  Mr.  Huntington,  ■ 

N.  B.  It  is  the  praHice  of  all  courts  in  the 
Jlate  of  ConneBicuty  to  try  pleas  in  abatement  with^ 
out  any  anjwer.  If  the  plaintiff  choofes^  he  may 
demur  on  traverfe^  but  if  he  does  not  choofe^  he  in- 
forms the  court,  ore  tenus,  what  parts  of  the  plea 
he  denies,  and  the  court  direB  an  enquiry;  but 
otherwife,  itjlands  demurred  to,  and  the  record  is^ 
^^  plea  in  abatement  fufficient,  or  infufficient,*^ 


Note.. — —In  this  county,  March  term,  1784,  the  court 
cftablifhed  a  ftanding  rule  for  computing  intercllon  obliga- 
tions, where  one  or  more  payments  have  been  made— — 
Which  follows— Compute  the  intereft  to  the  time  of  the 
firft  payment;  if  that  be  one  year  or  more  from  the  time 
the  intereft  commenced  ;  add  it  to  the  principal,  and  de» 
daft  the  payment  from  the  fum  total.  If  there  be  after  pay- 
ments made,  compute  the  intereil  on  the  balance  due  to  the 
next  payment,  and  then  dedud  the  payment  as  above  ;  and 
in  like  manner  from  one  payment  to  another,  till  all  the 
payments  are  abforbed ;  provided  the  time  between  one  pay- 
ment and  another  be  one  year  or  more."-= — But  if  any  pay- 
ment be  made  before  one  year's  intereft  hath  accrued,  then 
compute  the  intereft  on  the  principal  fum  due  on  the  obli- 
gation for  one  year,  add  it  to  the  principal,  and  compute 
the  intereft  on  the  fum  paid,  from  the  time  it  was  paid,  up 
to  the  end  of  the  year  ;  add  it  to  the  fum  paid,  and  dedui^l 
that  fum  from  the  principal  and  intereft  added  as  above. 
If  any  payments  be  made  of  a  lefs  Turn  than  the  intereft  ari- 
fen  at  the  time  of  fuch  payment,  no  intereft  is  to  be  com- 
puted but  only  on  the  principal  fum  for  any  period. 


'G  H 


EN  SHAW 


50  '      County  of  Middlesex,    July  Term. 

^7^^-      Henshaw  againjl  Curtis  Coe  (3!«J  Joseph 
CoE,  Executors  0/  Joseph  Coe,  deceajed, 

ERROR  from  the  court  of  common  pleas. 
Hcnfhaw  brought  his  aftion  on  the 

canhav^eno  cafe  againft  the  defendants. — The  declaration 
right  of  ac-    contained  two  counts — 

tiiTalignor,  1.  That  in  November,  1769,  on^  EliJJia  Clark 
unicfs  a  le-  rfince  dead)  executed  a  promiflbry  note  to  the 
r-jteispre-  ^J^^^^o?' for  eighteen  pouuds  ten  Ihiiungs.  And 
cpufe'io-^^"  i"  Auguft,  1771,  for  the  confideration  of  twen- 
thmgisdne,  ty  pounds  eight  fhillings  and  nine  pence  (being 
promifl?!]-^  the  principal  and  intereft  then  due)  the  tejlator 
Avas  inioi-  affigned  it  to  the  plaintiff. — That  the  plaintiff 
time  of  af^     had  demanded  payment  of  C/^r^,  who  refufed. 


fignmencjor  of  which  hc  had  givcu  uoticc  to  the  tejlator 'y 
otihiTffiga-  whereupon  he  became  liable,  affumed,  &c. 
^.^'  ope^^:         2.   Count  for  money  had  and  received. 
charge  r&  if       The  defendants  pleaded  to  the.  firft  count, — 
the  aflignee  yj^^t  having  prayed  oyer  of  the  note,  there  ap- 
part  of  the    pcarcd  to  be  endorfed  on  the  back  thereof  by 
[wThafa'cJ,    ^^^^  plaintiff,  fix  pounds  twelve  fhillings  and  fix- 
he  accepts'    pence,  received  of  faid  Clark,  in  January,  1779  ; 
payo^fo'rthe  and  iu  April,  1780,  judgement  was  rendered  for 
whole.         the  remainder. — That  at  the  time  of  the  affign- 
ment  of  faid  note  to  the  plaintiff,  and  for  feve- 
ral  years  after,  faid  Clark  was  abundantly  able 
to   difcharge   the  debt. — That  the  plaintiff  did 
not  profecute  faid  note  in  the  law,  until  more 
than  eight  years  after  he  received  it ;  nor  did 
he  within  that  time^ive  any  notice  to  the  tejla- 
tor,  or  the  defendants,  that  faid  Clark  had  re- 
fufed  payment ;  but  held  the   fame  in  his  own 
cuftody,  without  offering  to  return  it;  that  faid 
Clark  is  now  dead,  infolvent,  and  the  contents 
of  faid  note  loft. 

That  the  fecond  count  is  for  the  fame  matter, 
caufe  and  thing  alledged  in  the  firft  count. 

The  plaintiff  demurred  generally — and  judge- 
ment was  rendered  for  the  defendants. 


County  of  Middlesex,  July  Term.  5^ 

The  error  affigned  was,  that  the  plea  in  bar     '^^V^, 
was  in  fubftance  the  general  iflue,  and  contain-     — r— == 
ed  only  a  denial  of  the  fads  dated  in  the  deck-    Henlhaw 
ration;  therefore  could  not  be  pleaded  in  bar,  ^S^.[".^^  ^^ 
but  if  true,  ought  to  have  been  given  in  evi- 
dence under  the  general  iffue. 

Mr.  Dana  and  Mr.  Woodruff,  for  the  defen« 
dants  in  error,  pleaded  in  abatement,  that  the 
plaintiff  appealed  from  the  judgement  of  the 
court  of  common  pleas  during  the  fitting  of  the 
court,  and  entered  bonds  therefor,  according 
to  law;  therefore  final  judgement  was  not  yet 
rendered  in  faid  caufe. 

Mr.  Miller y  for  the  plaintiff  in  error,  demur-^ 
red,  becaufe  no  duty  had  been  paid  on  the  ap- 
peal— and  the  plea  was  adjudged  infufficient. 

By  the  whole  Court. — —The  appeal  was 
void,  the  flate  duty  not  having  been  paid  and 
certified  as  the  law  dire6ls;  therefore  no  pro- 
cefs  was  pending  thereon.— — -The  defendants 
then  pleaded  in  nullo  eft  erratum — and  the  judg- 
ment of  the  court  of  common  pleas  was  affirmed. 

By  the  v^hole  Court.'  By  the  affign- 
ment  of  the  note  declared  upon,  the  plaintiff 
was  fully  empowered  to  recover  and  receive  the 
money  due  thereon,  of  Elijha  Clark^  who  exe- 
cuted the  note  :  And  therefore  the  defendants, 
could  not  be  liable  to  any  aQion  thereon,  unlefs 
the  plaintiff  fhould  Ihow  that  the  money,  could 
not  be  recovered  or  obtained  from  Clark,  either 
on  account  of  its  not  being  due,,  ot  the  promij/br 
being  injolvent  at  the  time  of  the  ajjignment,  or 
fome  ad  of  the  affignor  to  di [charge  it  after- 
wards :  Neither  of  which  is  alledged  in  the  pre- 
fent  cafe.  And  Clark,  years  after  the  affign- 
ment,  became  and  is  infolvent.  And  the  plain- 
tiff, by  receiving  part  of  the  money  due  on  the 
note  of  the  promiffor,  is  confidered  in  law  as  ac- 
cepting him  payor  for  the  whole. 

G  2  The 


5-  County  of  Middlesex,    July   Term, 

The  State  againjl  Luther  Stutson. 

&of"  C  TUTSON  ^vas  indiaed  on  the  ftatiite  againft 
coun.crfcit-  O  Counterfeiting,  and  a  verdi6t  found  againft 
fn^bolhTh^  him.— The  indiament  charged,  that  he  did  fe- 
letterand  louioufly  aid  and  ajjijl  Bazaleel  Phelps,  in  ma- 
ftTuKc^as^'''  ^^"g  ^"^  counterfeiting  fifteen  French  guineas,. 
much  as  af-  One  hundred  Sfanifh  milled  dollars,  and  one  hurt- 
i^k^ig^he    ^^^^  pifi^areensy  of  falfe  and  bafe  metal,  in  like- 

implements,  ncfs  and  imitation  of  the  true  guineas,  &c. 

The  words  of  the  ftatute  are,  **  That  whofoever 
"  ftiall  ftamp,  or  any  other  ways  counterfeit  any 
"  of  the  coins  of  gold  or  filver  currently  pafling 
"  in  this  ftate,  or  that  fhall  utter  and  put  off  any 
"  fuch  counterfeit  coins,  knowing  the  fame  to 
"  be  bafe,  falfe  and  counterfeit,  or  that  Ihall 
"  make  any  inftrument  or  inftrum.ents,  for  the 
**  counterfeiting  any  of  the  coins  aforefaid,  or 
"  fhall  be  aiding  and  affifting  therein,"  Sec. 

Mr.  Rooty  of  counfel  for  the  prifoner,  moved 
in  arrefl,  and  for  caufe  alledged,  that  the  offence 
charged  is  not  provided  againft  by  ftatute. 

The  motion  was  over-ruled For, 

By  the  whole  Court. -The  exception 

tinder  the  motion  is,  that  the  aiding  and  ajfifiing 
in  the  ftatute,  is  limited  to  that  of  making  the 
implements  for  counterfeiting,  and  extends  not 
to  that  of  counterfeiting  itfelf,  which  is  the  aid- 
ing and  affifting  laid  in  the  indiament. 

Both  the  letter  and  the  reafon  of  the  ftatute 
extend  to  aiding  and  affifting  in  the  latter  cafe, 
as  well  as  the  former:  And  befides,  whoever 
does  in  faa  afTift  in  the  counterfeiting,  does  a 
part  of  it,  and  is  as  truly  the  counterfeiter  as 
any  one  can  be  who  does  not  execute  the  whole 
alone;  and  it  is  immaterial  whether  he  be  char- 
ged as  a  fole  or  joint  agent  in  the  matter. — So 
that  the  allegation  that  he  did  ajfijl  in  the  coun- 
terfeiting. 


County  of  Middlesex^  July  Term.  53 

terfeiting,  is  fubftantially  the  fame  as  that  he  did  "^^"57 

GOiinterfeit,  &c,  and  brings  him  fully  within  the  ==4==^ 
ilatiite  as  a  principal. 


Philip  Mo r t i m e r,  Efq,  againjl  C h  a r l e $  and  fhfp  ifdif- 
George  Caldwell.  foived,  and 

all  company 

ACTION  onbook  debt.- The  defendants  f^^l  f^^^ 
pleaded,  that  the  book  of  the  plaintiff,  on  partner ^ 
oyer,  is  found  to  confift  of  articles  and  fervices  co^j^g^^' 
done  and  furnifbed  for  the  defendants,  as  co-  bound  to  pay 
partners  and  traders  in  company,  between  the  febts^rne"^ 
years   1761   and  1766. — That  on  the  15th  day  becomes  a 
of  December,   1768,  the  defendants,  by  a  wri-  rpec^^iadol" 
ting  under   their  hands,  dilTolved  the  co-part^-  irfoivency 
neriliip  of  the  company  of  Charles  and  George  iliTLlom^ 
CaldwelL—And  by  the  fame  writing,  the  faid  e^e™p''''s 
Charles  affigned   over   and    conveyed   to   faid  fromlmpri- 
George,  all  the  company  concerns,  intereft  and  ^^^^^^\^^' 
credits,  for  faid  G^org-f,  to  receive  and  convert  figHmghis 
to  his  own  ufe.— And  George,  in  confideration  f/X~e7foT 
thereof,  took  upon  himfelf,  covenanted  and  en-  theufeoihis 
gaged,  to  pay  all  the  company  debts  then  due  :  Hecom"iies 
And  thereby,  all  the  company  intereft  and  ere-  wkhthepro- 
dits,  became  the  property  of  faid  George,  and  it  lal^'andaC-^ 
became   his  duty  to  pay  and  difcharge  all  the  fig"s  the 
company  debts. — That  the  book  on  which,  &c.  prJTpm/: 
is  one  of  faid  company  debts,  which  it  was  the  ^be  compa- 
duty   of  faid  George  to  pay  and  fatisfy. — That  "xhibked^To 
faid  Charles  being  divefted  of  all  property  or  ^is^ruftees, 

•i^^^i  ^  1  .  n  \  T  andavera- 

right  to  the  company  dues,  mtereft  and  credits,  ged  among 

and  faid  George  being  reduced  by  loffes  and  mif~  ^^^  pnvate 
r.  rji-  •••^1^  1    debts;— the 

iortunes,  preferred  his  petition  to  the  General  other  part- 

Affembly  in  May,  1771,  reprefenting  his  loifes,  ",^^1,',^ f j^^  ^ 

misfortunes,  and  inability  to  pay  all  faid  debts,  theremam-^ 

The  ^^^  ^"^  °" 

company 

debts. 


54  County  of  Middlesex,  J:uly  Term. 

"^"tH?         ^^'^  Gen..  Aflembly  inquired  into  the  matterj, 
=====     and  found  that  his  debts, .  including  faid  compa- 
Mortimer   ny  debts,  which  it  was  his  duty  to  pay,  amounted 
a^ain^      to  5,788/.  95.  4^^.  and  that  his  eftate  and  credits 
Caldvyell.    amounted   to   3,049/.   05.    g^d,   including  faid 
company  interefts  and  credits.— That  the  Ge- 
neral Aflembly  paffed  a  fpecial  a8;  of  infolven- 
cy,  exempting  the  perfon  of  faid  George  from 
imprifonment  from  any  debt  then  due,  upon  af- 
figning  over  all  his  property  as  before  ftated, 
to  truftees  therein  mentioned,  for  the  ufe  of  his 
creditors. — (Which  aH  is  recited  at  large  in  the 
plea.) 

That  faid  George  did,  in  purfuance  and  com-*^ 
pliance  with  faid  ad -of  AiTembly,  makeover 
and  affign  to  faid  truftees  all  his  eftate,  both 
real  and  perfonal,  with  all  the  eftate,  dues,  and 
credits  of  faid  comipany  of  Charles  and  George 
Caldwell^  to  and  for  the  ufe  and  benefit  of  his 
creditors. — And  that  they  ever  have  been  fmce, 
at  the  fole  difpofal  and  direction  of  faid  credi- 
tors, one  of  whom  was  the  plaintiff,  who  was 
privy  to,  and  acquiefced  in  faid  tranfaBion. 

That  in  May,  1772,  upon  application  of  faid 
truftees,  the  General  Aflembly,  by  a  fpecial  a8:i 
empowered  them  to  fue  for,  and  recover  all  the 
debts,  credits  and  monies  due  to  faid  George^ 
and  the  late  company  ol- Charles  and  George^ 
and  when  recovered,  to  divide  and  diftribute  the 
fame  amongft  his  creditors. — (Which  aU  is  reci- 
ted at  large  in  the  plea.) 

And  that  thereupon  all  the  eftate,  interefts, 
fecurities,  papers,  vouchers,  and  receipts,  rela- 
ting to  faid  company  debts  and  credits,  were 
delivered  over  into  the  hands  of  faid  truftees 
to  fettle  and  adjuft  with  the  feveral  creditors, 
and  faid  Charles  and  George  are  wholly  divefted 
of  them,  and  have  no  means  in  their  power  to 
evince  any  payments  that  have  been  made; 

and 


Caldwell. 


County  of  Middlesex,  July  Term.  55 

and  thereupon  faid  George  Caldwell^  and  faid  ""^^86. 
company  of  Charles  and  George  Caldwell^  be-  =^=^===^ 
came  exonerated  and  difcharged  from  all  fuits  Mortimer 
and  demands  againft  t4iem,  for  any  debts  due  ^"jf^^-fii 
and  owing  from  faid  company,  until  a  final  ave- 
rage fhould  be  made  out  by  faid  truftees,  purfu- 
ant  to  faid  acl  of  infolvency ;  and  then  only  for 
the  refiduum  of  faid  debts  that  fliould  be  found 
due  after  fuch  average  fhould  be  made. — And 
that  no  average  hath  been  made  out  by  faid 
truftees,  but  the  fame  is  ftill  depending  in  the 
hands  of  faid  truflees,  fubje6l,  as  it  ever  has 
been,  to  the  order  and  direction  of  faid  cre- 
ditors, of  whom  the  faid  Philip  Mortimer  was^ 
and  is  one. 

To  this  there  was  a  demurrer,   and  joinder 
in  demurrer. 

By  the  Court. The  plea  is  infufficient. 

— The  fpecial  a8:  of  infolvency  fet  forth  in  the 
plea,  goes  to  the  exemption  of  the  perfon  of 
George^  one  of  the  defendants  (leaving  his  eftate 
liable,  which  he  may  afterwards  acquire.)  But 
it  extends  not  to  Charles,  the  other  defendant. 
He  is  not  named  in  it.  Nor  is  it  grounded  on 
any  fuppofed  inability  of  his,  to  pay  the  com» 
pany  debts.  Nor  does  it  operate  to  difcharge 
him  on  the  ground  of  the  fuppofed  hardfhip 
there  would  be  in  his  remaining  liable,  after 
the  perfon  of  the  other  joint  debtor  is  libera- 
ted, and  the  company  effeds  and  papers  are 
gone  into  the  hands  of  truflees  and  out  of  his 
controul.  If  he  is  in  fa^  more  expofed  and 
defencelefs  to  his  creditors,  fmce  the  pafTmg  the 
a8:  of  infolvency,  than  he  was  before,  it  does 
not  follow  that  it  has  difcharged  him.  But  he 
ever  was  liable  to  be  levied  upon,  folely,  for  all 
the  company  debts,  and  all  their  contracts  were, 
in  their  nature,  joint  and  feveral.  Nor  is  it 
owing  to  the  paffing  of  the  ad  of  infolvency, 

that 


56  CouwTY  OF  Middlesex,  J"ulv  Term. 

i'tS?'     ^^^^  ^^  ^^^  "^^  right  to  controul  the  company  ef- 

— -■     — ^     feels  ;  he  having  fold  and  relinquiflied  his  fhare 

Mortimer    in  them  years  before,  at  the  diffolution  of  the 

again]}      partnerfhip ;  and  the  a6l  provides  for  no  other 

affignment  than  of  that  which  is  confidered  as 

Geo7'ge's  eftate.     Nor  need  there  be  any  diffi* 

culty   about  the   company  books   and  papers. 

Free  acCefs  may  be  had  to  them,  and  an  order 

of  court,  if  neceffary,  might  be  obtained  for  their 

being  brought  into  court  when  requifite  in  th€ 

trial  of  a  caufe. 

If  the  truftees  have'paid  the  plaintiff  any  part 
of  his  debt,  out  of  the  avails  of  the  effe8s  af- 
figned  to  them,  it  can  be  fliown  and  applied 
when  damages  come  to  be  affeffed,  A  balance, 
it  is  clear,  there  muft  be  due  to  him,  even  if  the 
affignment  to  the  truftees  be  confidered  as  an 
a6kial  payment  to  the  creditors,  and  to  the  no- 
minal amount  of  the  credits  and  effects  affign- 
ed.  And  no  reafon  appears  why  judgement 
fhould  not  be  rendered  in  the  prefent  adion, 
for  the  afcertaining  and  recovering  what  ftill 
remain  sdue. 

Judge  Dye Ry-^dijfenting. — -C,  and  G.  Cald- 
well, when  they  entered  into  contraQ;  with  the 
plaintiff,  were  knov/n  to  be  in  company ;  and 
every  cbntraft  they  made  mufl  be  confidered 
and  governed  by  the  true  legal  intention  of  the 
parties,  and  the  laws  of  the  flate  then  in  being 
and  force;  and  if  altered  by  any  poJl/aSio  law, 
or  private  a6l  of  the  legiflature,  will  operate  to 
deflroy  or  render  void  the  original  contraQ:. 
Bacon's  Abr.  tit,Jlatute  c. — Salkeld  198— 5r^w- 
Jler  vs.  KitcheL — But  it  cannot  operate  to  fub- 
jeQ:  the  obligors,  their  perfons  or  eflate,  in  a 
different  manner  from  what  they  were  obli- 
ged at  the  time  of  the  contra6l.  On  a  bond, 
A  and  5  are  joint  obligors  ;  if  the  name  or  feal 
of  one  is  taken  off,  it  is  deftrojed  as  to  the  other. 

Ch'arles 


Caidweil, 


County  of  Middlesex,  July  Term,  57 

Charles  and  George,  and  each  of  them,  at  the  "^"^57 
time  of  contrafting  with  the  plaintiff,  knew  arid  z:^J^~ 
confidered  that  the  body  and  eftate  of  each  were  Mortimer 
pledged  for  the  fatisfa6lion,  or  to  compel  the  againji 
payment  of  the  debt :  And  Charles  mud  confi- 
der,  that  the  body  of  his  brother  George  was 
liable  to  be  taken  and  holden  to  compel  him  to 
turn  out  or  produce  his  eftate  (if  any)  for  the 
fatisfaQion  of  the  debt,  as  well  as  his  own  : — 
This  alfo  the  plaintiff  well  knew,  and  was  the 
legal  fecurity  he  depended  upon.  If  the  Af- 
fembly,  by  a  fovereign  a6l,  and  of  a  private  na- 
ture, have  undertaken  to  liberate  the  perfon  of 
George  from  being  liable  to  be  taken  and  hol- 
den to  compel  him  to  produce  his  eftate,  (if  any) 
it  materially  alters  the  original  contra8;  and  fe- 
curity, both  as  to  debtors  and  creditors. — And 
the  creditor,  by  confenting  thereto  (without 
which  the  a6l  could  not  operate  to  the  difadw 
vantage  of  Charles^  the  other  partner)  does  as 
effectually  difcharge  the  original  contrad,  as  if 
by  his  own  immediate  a8:,  he  had  difcharged 
one  of  the  joint  debtors. — In  the  prefent  cafe, 
if  judgement  is  rendered  in  favour  of  the  plain- 
tiff, he  cannot  take  the  body  of  George — George. 
may  poffefs  large  property,  which  can  eafily  be 
kept  out  of  the  way  of  the  creditor's  execution ; 
and  his  body  being  exempt,  there  is  no  way  to 
compel  a  difcovery  :  (For  that  is  the  only  folid 
ground  or  reafon  of  the  law  fubjefting  the  body- 
to  be  taken.)  Now  the  body  of  George  being 
liberated,  it  neceffarily  cafts  the  whole  upon 
CharleSy  effentially  different  from  the  original 
contrail.  It  is  objefted,  that  on  the  original 
contraft,  the  creditor,  if  he  pleafed,  might  col- 
led the  whole  out  of  the  eftate  of  either,  or  take 
the  body  of  either  without  the  other,  and  com- 
pel him  to  produce  eftate  to  pay  the  whole.— 
True  it  is  fo;  but  then  Charles  had  an  equal 
H  chance 


58        County  of  Middlesex.,  July  Term. 

1786.     chance  with  George^  that  George  might  be  com- 
'—-—=     pelled  to  pay  the  whole,  or  at  leaft  the  one  half: 
Mortimer  But  if  the  a6l  in  favour  of  George  is  operative 
againj}     jj-^  ^^^  q^X^^  it  cxcmpts  GeorgCy  and  neceffarily 
calls  the  whole  upon  Charles,  contrary  to   the 
legal  underftanding  and  operation  of  the  origi- 
nal contract. 

It  is  further  obje6led,  that  it  appears  from 
the  law  authorities,  that  by  the  operation  of  the 
bankrupt  laws  in  England,  where  one  partner 
becomes  a  bankrupt,  the  other  is  notwithfland- 
ing  fubjefted  to  all  intents  and  purpofes,  as 
though  his  partner  had  taken  no  benefit  there- 
by.— To  which  I  anfwer,  that  the  flatute  re- 
fpeding  bankrupts  in  England,  is  a  general  fub- 
fifting  law  of  the  kingdom,  antecedent  to  all 
debts  or  contrails  which  are  affe6led  by  it  : 
Therefore,  when  acontraQ  is  made,  (a  general 
public  law  exiiling)  fuch  contrad  muft  be  con- 
sidered by  the  contra6ling  parties,  and  under- 
ftood  as  fubje8:  to  fuch  law.  This  is  what  I 
contend  for — The  aQ:  now  pleaded,  exempting 
the  body  of  George,  is  a  private  a6l,  which  did 
not  exifl  at  the  time  this  debt  was  contrafted, 
but  was  made  long  fince ;  therefore  could  not 
be  .had  in  confideration  by  the  parties  contraH- 
ing  :  But  the  laws  then  exifting,  fubje8;ed  the 
bodies  of  both  to  be  taken,  and  held  to  compel 
a  fatisfaftion  of  the  debt ;  one  of  which  is  fince 
liberated  by  this  a6l:  The  plaintiff  and  the  other 
creditors,  have  conformed  themfelves  thereto; 
\«hich  effentially  alters  the  original  contrail. 

Another  point  of  fome  weight  and  confider- 
ation in  the  cafe  is,  that  the  company  debts  and 
interefls  were  all  made  over  to  George,  and  with 
the  eftate  o£  George,  by  a6l  of  law  and  the  cre- 
ditors, was  made  over  to  commifTioners  appoint- 
ed by  the  creditors,  and  the  plaintiff  in  particu- 
lar :  And  which  commiffioners  are  appointed 

and 


County  of  Middlesex,  July  Term. 

and  empowered  to  examine  all  debts  and  de- 
mands againft  faid  company,  and  afcertain  the 
fums  due,  and  to  apportion  out  to  the  feveral 
creditors  their  feveral  parts,  as  in  cafe  of  infoU 
vent  eftates,  &c. — and  that  the  fame  ftill  lies  be- 
fore the  commiffioners  unfinifhed. — I  am,  there- 
fore, of  opinion,  the  a6lion  does  not  at  prefent 
lie  before  the  courts  of  common  law  to  afcer- 
tain the  debt  of  any  creditor,  but  before  the 
commiffioners :  Neither  can  any  certain  judge- 
ment be  rendered  by  this  court  in  the  prefent 
cafe,  as  the  commiffioners  have  not  determined 
what  is  the  plaintiff's  proportion  of  the  eftate 
in  their  hands. 

Upon  the  whole,  it  appears  unjuft,  and  not 
confonant  to  reafon  or  equity,  that  on  a  joint  or 
company  contra6i;  of  George  and  Charles  Cald- 
well,, a  judgement  fliould  be  rendered  which 
will  fubjed  the  body  of  Charles  to  be  taken  and 
imprifoned,  at  the  pleafure  of  a  creditor,  tho' 
no  eftate  in  his  hands,  when  at  the  fame  time 
George  may  have  a  plentiful  eftate,  but  his  body 
liberated,  and  no  means  left  either  for  Charles 
himfelf,  the  plaintiff  or  any  other  creditor,  to 
compel  George  to  difcover  or  produce  his  eftate 
for  the  fatisfa6lion  of  the  company  debts,  or  any 
part  thereof,  but  Charles  alone  is  fubjefted,  con- 
trary to  his  original  contraO:  and  undertaking. 


59 

Mortimer 

againfi 
Caldwell. 


H2 


Woodruff 


6o  County  of  Litchfield,  August  Tzrm. 

"^^4786! 

~  Woodruff  ^^^tny?  Whittlesey. 

Trover  for  a  ^  |  ^HIS  was  an  affion  of  trover  for  a  heifer. — 

pfaintiff^  ^     A     Plea,  Not  guilty. The  plaintiff  claim- 

h^lfeJ^b  ^^^^  ^^  ^^^  property  of  the  heifer,  by  a  transfer  from 
mnsferf.om  Nathaniel  Baldwin  Woodruffs  on  the  24th  'day  of 
WoSdr"uff?*  Oaober,  1783,  in  payment  of  a  debt  due  to  the 
The  defend-   plaintiff  by  note.     Two  witneffes  teftified  to  the 
tte t^ansfer"^  fale !  They  faid  it  was  in  the  evening— that  they 
was  fraudu-  were  Only  called  in  to  witnefs  the  bill  of  fale, 
this'point*^*  which  was  written  in  another  room. — They  did 
rcftedhisdc-  not  fee  any  note  delivered  up,  but  underftood 
from  the  converfation,  which  then  paffed  be- 
tween Baldwin  Woodruff  and  the  plaintiff,  that 
a  certain  debt,  due  by  note,  was  the  confidera- 
tion  of  the  bill  of  fale. 

The  only  queftion  was,  whether  the  transfer 
from  Baldwin  Woodruff  to  the  plaintiff,  was  frau- 
dulent. The  defendant,  Whittlefey,  was  a  con- 
ftable,  and  at  the  fuit  of  one  Murray,  attached 
the  heifer  in  queflion,  the  18th  day  of  Novem- 
ber, '  83,  as  the  property  of  Baldwin  Woodruff.  It 
was  proved  by  the  defendant,  that  the  poffeffion 
of  the  heifer,  after  the  pretended  transfer  to  the 
plaintiff,  was  not  changed,  till  taken  by  the  de- 
fendant.— That  the  bill  of  fale,  by  which  the 
plaintiff  claimed,  was  dated  one  day  before 
,,  Baldwin  Woodruff  had  acquired  any  property  in 

the  heifer ;  and  he  had  frequently  faid,  he  ne- 
ver would  pay  Murray  any  thing,  but  would  put 
his  eftate  out  of  his  hands  to  avoid  it  (though 
it  was  at  that  time  only  a  right  of  a6tion.) 

Thefe  circumftances  were  urged  by  the  de- 
fendant as  fo  many  indifputable  badges  of  fraud, 
to  which  was  cited,  2  Wilfon's  Reports,  260— 
3  Coke,  82,  Twine's  cafe — 1  Burrow,  467,  Worfe^ 
ley,  &  aL  vs.  De  Mattos  and  Slader — 2  Bur- 
row, 831,  Wilfon  vs.  Day — Cowper's  Reports,  434' 

The 


County  of  Litchfield,  August  Term.  6't 

The  jury  found  a  verdi8:  for  the  defendant,  "^{T^^ 
which  was  accepted  by  the  whole  court.  5==== 

The  plaintiff's  counfel  then  moved  in  arreft  WoodrufF 
of  judgement,  and  for  caufe  alledged, —  wv^'t'T  - 

1.  That  on  trial  of  faid  caufe  before  the  court  ^hittieiey 
and  jury,  the  only  queftion  was,  whether  the 
tranfaftion  between  Solomon  Woodruffs  the  plain- 
tiff, and  Nathaniel  B,  Woodruffs  on  the  24th  day 

of  08:ober,  1783,  relative  to  the  fale  of  faid 
heifer,  was  fraudulent,  as  it  refpe6led  a  demand 
of  one  Philemon  Murray^  upon  faid  Nathaniel 
B.  Woodruff.  And  that  in  evidence,  the  defen- 
dant exhibited  a  writ  of  attachment,  in  favour 
of  faid  Murray y  againft  faid  Baldwin  Woodruff y 
in  an  a6iion  for  Jlander^  demanding  forty  Ihil- 
lings  damages;  which  writ  was  dated  the  7th: 
day  of  OBober,  and  ferved  the  18th  day  of 
November,  1783:  And  that  faid  writ  of  attach- 
ment, and  judgement  thereon,  was  the  only  evi- 
dence of  any  debt,  on  the  part  of  faid  Murray y 
againft  faid  Baldwin  Woodruff]  which  could  not 
be  confidered  as  a  debt,  until  after  faid  18th 
day  of  November ;  therefore,  at  the  time  of  faid 
bargain  and  fale  of  faid  heifer,  from  faid  Bald- 
win Woodruff  to  the  plaintiff,  there  was  no  cer- 
tain claim,  debt  or  demand  exifting,  on  the  part 
of  faid  Murrayy  againft  faid  Baldioin  Woodruff, 
fo  as  to  make  faid  fale  fraudulent. 

2.  That  one  of  the  jurors  who  tried  faid 
caufe,  had  previoufly  to  faid  trial  given  his  opi- 
nion in  faid  caufe. 

The  motion  was  over-ruled.  ^^^,  *^°"'"'^ 

viil  never 

By   the  whole  Court. The  firft  ex-  reforc  to  the 

ception  is  infufficient ;  becaufe  the  court,  on  l^u?,?"  ®" 
motion  m  arreit,  after  a  general  verdict  of  the  dia  is  foun- 
jury,  cannot  refort  back  to  the  evidence  on  oroLnd  of 
which  the  verdiQ  was  founded,  to  fet  it  afide,  tneii^  but 
but  muft  render  judgement  according  to  the  Is  conciu-" 
faQ:s  found.  /jvc,thefaas 

.       ,    found  by  the 
And   vcrdi^. 


62  County  of  Litchfield,  August  Term. 

"^iTsir         And,  lipon  examination  into  the  fafts  ailed- 

-^,    ged  in  the  fecond  exception,  it  does  not  appear 

that  there  was  any  partiality  in  the  juror,  who 
is  faid  to  have  given  his  opinion  in  the  cafe,  be- 
fore the  trial,  as  he  declares  he  had  no  remem- 
brance of  it ;  and  although  it  was  teftified  by 
two  young  men  that  they  had' heard  him^  fome 
years  ago,  give  his  opinion  in  a  tranfient  dif- 
ccurfe,  yet  it  doth  not  appear  that;  that  opinion 
was  founded  on  a  full  knowledge  of  the  cafe,  or 
that  it  had  any  influence  on  his  mind  in  the  trial. 
And  it  was  further  ihown,  that  the  other  jurors 
were  very  unanimous  in  giving  their  verdi6l  as 
they  did,  before  they  had  heard  his  opinion. 

A  party  to  a  NoTE. — In  this  c&fe  it  was  moved,  on  the  part 
conveyance,  of  the  defendant,  that  he  might  introduce  tejlimony 
and  not  a      of  what  Baldwin  Woodruff  A^c?  acknowledged^  as 

iifitjVannot    to  the  fraud  in  faid  falc, -But, 

be  a witnefs,       jgy  THE  Gou R T. What  a  pcrfon  hath  been 

he  has  faid,  heard  to  fay,  who  is  only  inter ejled  in  the  event  of 
^^^^f^\  a  fuit,  but  not  a  party  to  it,  cannot  be  given  in  em-. 
>7as  not  pre-  dencc ;  jor  though  aperjon  may  conjejsfor  himjelj^ 
thk,  ^^^^^^'  ^^^  cannot  for  another » 

It  was  alfo  moved  to  enquire  the  character  of  the 

parties  to  the  fraudulent  conveyance,  as  to  honefty — 

rvhich  was  over-ruled  by  the  court. 


Bill  againft  Scott. 

when  a  juf-  T?  RROR  from  the  judgement  of  a  Juftice  of 

peacf  itnds  ^   ^hc  Pcacc. Scott  brought  his  aaion  qui 

to  good  be-  tarn,  againft  Bill,  for  an  affault  and  battery,  de- 

cJnSon.  manding   damage  four  pounds.— The  juftice 

lytiiichenext  rendered  judgement  for  the  plaintiff,  which  was 

court  of    •        ff  ^^        ^ 


common 


pleas,  leaving  it  to  the  difcrction  of  that  court  to  continue  or  difcbarge  the  bonds. 


County  of  Litchfi£ld>  August  Term.  63; 

recorded  in  thefe   words :  "    Watertowii,     ""7786! 

'*  January  28tb,  1786.— At  a  court  for  the  trial     ======= 

'  of  fmall  caufes,  Thomas  Fenn^  Efq.  Juftice  of       Bill 
'  the  Peace  for  Litchfield  county,  prefeiit;-—     ^g^^njf 

*  Elijah  Billy  of  Watertown,  was  brought  by  a 

*  fpeciaity  to  anfwer  to  a  complaint  ligned  by 
^  Eliphaz  Scotty  of  faid  Watertown^  for  breach 

*  of  the  peace.  The  court  opened,— the  deiin- 
'  quent,  in  court,  pleaded.  Not  guilty.  The 
'  plaintiff  teflified,  under  oatb,  that  he  was  guil- 
'  ty ;  and  evidence  was  fworn,  examined,  and 

*  the  cafe  heard   at  large. This  court  find 

'  damage  for  the  plaintiff  4I.   lawful  money^         ^ 

*  and  105.  fine  to  the  public,  and  order  faid 
'  Elijah  Bill  to  find  fufficient  bond  of  100/.  for 
^  his  peaceable  behaviour,  and  to  pay  coft,  tax- 
^  ed  at  195.  gd," 

Errors  afligned, — 1.  That  it  appears  from  the 
record,  that  the  teftimony  of  the  plaintiff  in 
the  aftion  was  admitted  on  the  trial,  which  was 
illegal. 

2.  That  the  bond  for  the  good  behaviour  of 
the  then  defendant,  was  illegally  taken,  for  that 
no  time  is  fet  when  it  may  expire,  nor  any  tre- 
ference  had  to  any  court  where  the  plaintiff  can 
obtain  relief  againft  it. 

And  without  argument,  the  judgement  of  the 
Juftice  was  reverfed.^- For, 

By  the  w^hole  Court.^— — The  complain- 
ant who  profecuted,  as  Veil  for  his  own  damages 
as  for  a  breach  of  the  peace,  was  admitted  as  a 
witnefs  in  the  cafe — which  was  illegal. 

And  it  doth  not  appear  from  the  record,  that 
the  defendant  was  found  guilty,  though  he  was 
adjudged  to  pay  damages  and  cofts. 

The  defendant  was  bound  to  his  good  beha- 
viour, without  day,  or  reference  to  any  court : 
Whereas,  a  Juftice  of  the  Peace  can  bind,  in 
fuch  cafe,  only  to  the  next  court  of  common 

pleas. 


64  County  of  Litchfield,  August  Term. 

'^?l6?    P^C2is,  leaving  it  to  the  difcretion  of  that  court 
t==4:=i    to  continue  or  difcharge  the  bonds. 


Peck  againjl  Goodwin* 

be^deHvcred  THHIS  was  an  aftiOH  of  trcfpafs  for  cutting 
fo  ^^'''"^".j    A     timber. — The  defendant  pleaded  the  ge- 

dlfpofa^  as  *    neral  iffue. The  principal  point  in  difpute 

^^aytJ?e\l"  ^^^'  ^^^  validity  of  a  quit-claim  deed  from  the 
tie  J  and  up-  plaintiff  to  the  defendant,  under  v^hich  the  de- 
in"  ^che^a-"  fondant  claimed  title. 

ward  the  The  cafc  was,  in  1784,  an  action  of  trefpafs 

come^^abio-  ^^is  pending  between  the  fame  parties  for  cut- 
lucetothe      ting  on  the  lands  now  in  queftion  ;  both  claim- 
whSbfivour  iug.    The  controvcrfy  was  fubmitted  to  arbitra- 
it  is  made.   ^  tion.     Quit-claim  deeds  from  each  to  the  other 
•iwere  executed,  acknowledged,  and  delivered 
into  the  hands  of  the  arbitrators,  to  be  by  them 
'  difpofed  of  as  they  fhould  award  the  title.    The 
arbitrators,  upon  hearing,  awarded  the  title  to 
be  in  Goodwin,  the  defendant,  and  delivered  to 
him  the  deeds.     There  was  fomc  contention  at 
the  trial,  whether  Feck  did  not  forbid  the  deli- 
very of  the  deed  after  the  arbitrators  had  pub- 
lifhed  their  award :  But  the  Court  faid  it  was  im- 
material, for  the  publifbing  the  award  was  the 
condition  of  the  delivery ;  that  being  perform- 
ed, the  deed  became  abfolute.     And  although 
the  fee  of  lands  cannot  be  transferred  by  award 
of  arbitrators,  yet  it  may  well  be  done  by  deed, 
as  in  this  cafe. 

The  jury  found  a  verdift  for  the  defendant, 
which  was  accepted  by  the  whole  court* 


BOSTW^ICK 


tion^ 


County  of  LitcHriELi)^  August  Term^  65 

BosTWicK  againji:  NiCKELSOiJ* 

ACTION  on  the  cafe  for  words,  refDeairo-  in^"  .aion 
the  plaintifi  m  his  profemon^  as  attorney  evidence 

.  ^   I  shall  ro»-  be 

at  Jaw.  ^  ^  given  oFfpc- 

The  declaration  concluded  with  thefe  words:  ciaidam.ge, 
— "  That  by  reafon  of  the  defendant's  uttering  aikdgcdin. 
"  andpublifhing  the  falfe  and  fcandalous  words  «he  dccUra- 
*^  aforefaid,  thofe  who  ufed  to  employ  him  in 
"^'  their  cafes  and  important  concerns,  daily 
**  withdraw  thcmfelves,   their  bufinefs,'*  Sec. 

The  defendant's  council  fuggefted  to  the 
court,  that  the  plaintiff  had  aliedged  fpeciai 
damage ;  and  therefore  moved  to  enquire  whe-. 
ther  any  had  been  fuftained. 

Mr.  Reeve,  counfel  for  the  plaintiff,  denied 
that  thofe  words  in  the  declaration  amounted  to 
an  allegation  of  fpeciai  damage ;  and  cited  the 
cafe  of  Browning  vs.  Newmariy  1  Strange^  666  % 
alfo  Buller*s  Niji  Prius,  jih  page. 

By  the  Court.' — — This  declaration  is  ge- 
neral; there  are  no  damages  fo  particularly  fet 
forth^  as  to  ground  a  fpeciai  enquiry. 


Aftion  for 
rt  .     /}  -c*  ^"^^^^    impri- 

Stoddard  agatnjt  Birh.  fonmemmay 

be  maintain- 

ACTION  of  trefpafs  for  falfe  imprifonment.  ^^1"^""^^^^^^^ 

-         The   declaration  ftates,  that,  "  On  J'roJerr"^" 

"  the  26th  day  of  September,  A.  D.    178Q,  in  ^^^^^"J  ^. 

the  northealt  precinct,   in  Dutchels  county,  on,  &c.u.res 

•'  {fate  of  New-York,  (within  the  county  of  Litc'h-  '/,^'IiXnx 

^^  field)  with  force  and  arlns,  a  high  handed  af-  defit;ntoex- 
''  fault  on  the  body  of  the  plaintiff  the  defendant  J^m  hFm^ 

"  did  make,  and  did  then  and  there,  without  vitiiom  an/ 

*  ■  law  or  rights  in  a  fpiteful  and  malicious  man-  lq^,itabL 

J  **  ner    foundation. 


$6  County  of  Litchfield,  August  Term. 

'~ijS6~'     "  "^^>  ^^^^y  f<^ize,  and  caufe  to  be  arrefted,  the 

==^=     "  body  of  the  plaintiff,  and  with  the  fame  force 

Stoddard     "  and  arms  him  did  unlawfully,  wrongfully,  and 

Ifrd^      "  falfly  imprifon,  hold,  abufe  and  reltrain  from 

"  his  liberty  for  the  fpace  of  three  days,  until  he 

"  did  make,  caufe  and  compel  the  plaintiff  to 

**  pay  large,  fums  .ofanoney,  in  order  to  obtain 

"  his  liberty,*'  Sec. 

The  general  iffue  being, pleaded,  tbe  cafe  ap- 
peared to  be  thus : — The  plaintiff  was  admini- 
firator  on  the  eftate  of  Jojiak  Stoddard^  decea- 
fed  :  He  had  made  a  reprefentation  of  infol- 
vency  to  the  court  of  probate  for  the  diftri6l  of 
Sharon;  commiffioners  had  been  appointed, 
who  received  and  examined  the  claims  exhibit- 
ed againft  the  eftate,  and  had  reported  the  fame 
to  be  infolvent.  No  average  had  been  made  to 
the  creditors,  or  ordered  to  be  made  by  the 
court  of  probate,  but  was  ftill  pending.  The 
defendant  had  exhibited  a  debt  of  thirty-fix  fhil- 
lings  lawful  money  againft  laid  ellate,  to  the 
commiffioners,  previoufiy  to  the  iniprifonment 
complained  of,  which  was  allowed. — While 
thefe  matters  were  thus  pending  before  the  court 
of  probate,  the  plaintiff  being  in  the  ftate  of 
New- York,  the  defendant  there  applied  to  a 
Juftice  ^f  the  Peace,  and  prayed  out  a  capias 
againft  the  perfon  of  the  plaintiff,  for  the  fame 
debt  of  thirty  ftiillings,  which  had  been  exhibi- 
ted to  the  commiffioners,  as  a  claim  againft  the 
eftate  of  Stoddard,  deceafed. — The  plaintiff  was 
taken  by  virtue  of  this  writ,  carried  before  the 
juftice,  there  held  in  cuftody  till  he  procured 
i^ecial  bail,  and  was  held  to  a  trial ;  on  which, 
judgement  was  rendered  againft  him  for  debt 
and  eoft. 

It  was  not  agreed  by  the  parties,  nor  did  it 
appear  on  trial,  whether  the  procefs  iffued  by 
the  Juftice  was  regular,  and  confiftent  with  the 
laws  of  the  ftate  of  New- York. 


County  of  Litchfield,  August  Term.  ^7 

Mr,  Reeve  and  Mr.  Tracy,  for   the  plaintiff,     '~i^%6, 

ursed  that  Luther  Stoddard,  the  plaintiff,  was =^ 

not  liable,  by  the  laws  of  Connefticut,  to  any  Stoddard 
kind  of  fuit  for  the  debt  which  Bird  had  exhi-  ^|f/j-^ 
bited  to  the  commiffioners,  during  its  pendency 
before  the  court  of  probate.  The  procefs  iffued 
by  the  [uftice  was  illegal,  and  not  warranted 
by  the  laws  of  the  ftate  of  New- York ;  for  the 
claufe,  ac  etiam  billw,  could  not  legally  be  in- 
ferted.  The  Britifh  ftatute  of  the  13.  Car.  2, 
which  prohibits  the  inferting  of  that  claufe,  a- 
gainft  executors  and  adminiftrators,  has  been 
explicitly  adopted  by  the  ftate  of  New-York. 
But  admitting,, the  form  of  the  writ  to  have  been 
regular,  Stoddard  ought  not  to  have  been  ar- 
relled ;  the  ufual  return  of  common  bail  onlvj 
Ihould  have  been  made  :  Therefore,  the  fuit 
being  groundlefs  in  the  firft  inftance,  and  ille- 
gal in  the  procefs  and  execution,  the  defendant 
who  procured  it,  with  a  wicked  intention,  was 
guilty  of  a  trefpafs,  and  muft  be  liable  to  refpond 
in  damages. 

Mr.  Root  and  Mr.  Canfieldy  for  the  defendant, 
admitted  the  laws  of  this  ftate  as  urged  on  the 
other  f]de,  but  denied  that  by  the  laws  of  the 
ftate  of  New- York  any  other  form  or  procefs 
could  have  been  iffued,  than  the  one  iffued  by 
the  Juftice.  If  fpecial  bail  was  not  required  by 
law  in  cafe  of  an  adminiftrator,  the  officer  did 
wrong  not  to  make  return  of  common  bail  and 
difmifs  Stoddard:  But  this  would  be  the  wrong 
doing  of  the  officer,  and  not  of  Bird,  the  defen- 
dant. If  the  writ  legally  iffued,  no  a8:ion  of 
falfe  imprifonment  can  be  fuftained  againft 
Bird  for  the  a6l  of  the  officer. 

If  there  was  any  informality  in  the  writ,  or 
if  the  adion  was  not  fuftainable  before  the   Juf- 
tice, Stoddard  has  waved  all  advantages  which 
he  might  have  derived  from  that  quarter,  by  not 
1 2  pleading 


68  County  of  LiTCHr^^x^D,  August  Tjerm* 

~y35^     pleading  in   abatement   at  that  time.     As  he 
pleaded  to  the  merits,  he  acknowledged  the  ju- 


Stoddard    rifdi6lion,  and  admitted  the  legality  of  the  pro- 
a^mjl     cefs ;  and  the  judgement  being  rendered  againft 
^*^'*       him  on  that  iffue,  it  is  to  be  prefumed  that  the 
yight  of  a6lion  was  well  fupported,  according  ta 

the  laws  of  that  ftate. Lord  Raymond ^  22,9* 

Trefcot  vs.  Carpenter  and  Mann.  The  pre- 
fent  aOiion  is  entirely  miXconceived ;  for  if 
Stoddard  has  any  right  of  a6lion,  it  mufl  be  caj<s 
and  not  trejpafs. 

The  jury  found  a  verdi6l  for  the  plaintiff; — 
on  which  the  court  delivered  the  following  opi- 
nions :- 

JudgeE.h'Lswov.Tii. — Right  of  a6lion  againft 
an  adminiftrator  is  tranfitory,  and  the  aQion 
may  be  brought  wherever  he  is  found.  And 
though  he  is  not  to  be  arretted  according  to  the 
mode  of  procefs  in  this  ftate,  he  may  be,  for 
ought  appears  in  the  ftate  of  New- York.  An4 
the  prefumption  is  he  may,  becaufc  the  autho- 
rity there  iflued  a  warrant  to  make  the  arreft^ 
£ind  held  him  to  trial  upon  it. 

As  to  the  fuit  there,  being  without  caufe,  and 
vexatious;  this  is  not  to  be  intended,  but  the 
contrary,  after  a  judgement  in  the  plaintiff's  fa- 
vour, on  a  full  trial  upon  the  merits  j  but  if  it 
was  fo,  yet  if  the  arreft  and  holding  was  by  a 
lawful  precept,  an  aftion  of  falfe  imprifonment 
is  not  the  proper  remedy,  but  an  adion  on  the 
cafe,  or  upon  the  ftatute  againft  vexatious  fuits, 
I  think  no  trefpafs  is  here  proved;  and  there- 
fore that  the  jury  have  found  wrong. 

Judge  Pitkin.— As  it  appears  that  the  ad- 
,  miniftrator  conduced  properly,  he  ought  to  be 
prote8;ed,  otherwife  no  perfon  would  be  fafe  in 
that  fituation.  The  laws  of  this  ftate  undoubt- 
edly protect  adminiftrators  from  arrefts  on  ac^ 
count  of  the  deceafedwhom  they  reprefent :  For 


CouNTV  OF  Litchfield,  August  Term^  6^ 


pr 


ifoii 


if  it  was  otherwife,  and  they  might  be  legally     '~ij%6', 
?irrefted  in  this  way,  whenever  they  fhould  hap-     ===== 
pen  to  go  out  of  the  ftate,  they  would  be  liable   Stoddard 
to  be  ruined :  Therefore  I  think  the  procefs  was     ^|f%/^ 
illegal,  and  the  fuit  unwarrantable. 

^w^g"^  Sherman. — < — Undoubtedly  there  are  Qj,g  ^^y 
inftances  where  one  may  make  ufe  of  legal  au-  make  «re  of 
thority  in  fuch  manner  as  to  become  liable  to  rk/'^inrHch 
the  action  of  falfe  imprifonment :  As  where  one  manner  as  to 
will  arreft  another  by  legal  authority,  without  Je°oTn  ^' 
any  caufe  of  adion,  and  not  return  the  writ,  8cc,  v°"  f^^'"  ^^^^^ 
But  in  this  cafe  it  does  not  appear  but  the  fuit 
was  legally  inftituted  agreeably  to  the  forms  of 
that  ilate ;  and  the  prefumption  is  rather  that 
way,  for  the  aftion  went  to  trial,  and  judgement 
was  rendered  by  court  and  jury  againft  the  pre- 
fent  plaintiff.  I  think  that  fo  far  juftifies  the 
tranfa61ion,  that  this  kind  of  remedy  is  not  ap- 
plicable to  the  fuppofed  injury.  I  am  therefore 
of  opinion  the  jury  are  wrong. 

Judge  Dyer. ^-Every  caufe  will  have  its 

own  peculiar  complexion  and  leading  caft.  The 
faQs  here  are  conceded.  The  action  of  falfe 
imprifonment  always  goes  on  this  ground,— is 
the  imprifonment  complained  of  right,  or  is  it 
wrong  ? — If  it  appears  to  have  been  right,  the 
aQion  fails  ;  if  wrong,  the  aQion  is  fapportable. 
View  the  complexion  of  this  cafe :  It  appears 
that  Bird,  the  defendant,  deligned  to  extort 
from  the  plaintiff,  in  this  way,  a  fum  of  money 
which  he  could  not  recover  by  law,  and  which 
Stoddard  was  not  bound  by  juftice  to  pay ; — 
this  is  abufmg  the  law.  Perhaps  there  may  be 
another  remedy  for  the  injury,  but  I  think  that 
does  not  bar  this  fuit.  It  is  clear  that  Bi7'd  had 
no  right  in  this  ftate  to  arreft  Stoddardy  or  even 
fummon  him  before  a  court  of  juftice,  for  that 
debt,  under  the  circumftances  which  then  at- 
tended it.    I  think  he  had  no  right  to  do.  it  therei 

But 


70  County  of  Litchfield,  August  TermI 

"^TsS!     ^^^  ^^^^^  ^^^  ^  ^^^^^  taken  out  to  arreft  the  body 

==^^=     of  Stoddard.     Did  he  mean  to  have  fuch  a  writ  ? 

Stoddard  He  undoubtedly  did,  for  no  other  would  an- 

%^''d^    fwer   his  purpofe.     The  intention  and  defign, 

then,  was  wrongful,  and  the  a8:  injurious  ; — fo 

that  I  cannot  fee  but  the  jury  have  done  right. 

Law,  Chief  Jujlice. So  far  feems  to  be 

agreed,  that  the  defendant  has  done  wrong: 
The  only  queftion  is,  whether  the  plaintifiP  has 
chofen  his  proper  and  legal  remedy.  There 
are  many  cafes  where  a  man  may  have  two  re- 
medies for  the  fame  injury  :  He  may  then  make 
his  ele6lion  which  he  will  purfue.  The  law 
'  means  that  a  remedy  fhail  be  provided  for  every 
wrong,  that  will  do  equal  juftice  to  both  the  par- 
ties. Will  this  adion  do  compleat  juftice  ?  I 
am  not  certain  but  it  will  do  as  ample  juftice  as 

any  other. There  is  no  evidence  but  that  the 

defendant  applied  for  juft  fuch  a  writ  as  wasif- 
fued ;  and  it  is  moft  reafonable  to  fuppofe  that 
he  did,  and  that  the  officer  conduced  rightly, 
and  agreeably  to  the  precept.  The  plaintiff  has 
confequently  been  injured  by  the  procurement 
and  wrong  a6l  of  the  defendant.  I  am  there- 
fore of  opinion  the  verdi6l  is  right. 
It  was  accordingly  eftablifhed. 


A 


Benedict  againjl  Brownson. 

..  witnefs  Is  TN  this  cafc  the  plaintiff  offered  a  witnefs,  who 
not  admifli-  J^    j^^^  engaffcd  to  pay  his,  the  plaintiff's,  at- 

ble  where  he  r      ^  •  *u       r   •      /  i  i    •    .-rr 

has  a  pro-     tomcy  for  carrying   on  the  iuit  (the  plamtitt 
miCe  to  re-  ^^\^^  ^i  poor  man)  and  had  a  promife  from  the 

CCJvepartof    ^  &         1  r      ^  -i  n     ^         r    -         -r 

the  avails  of  plamtitf  that  part  or  the  avails  of  the  iuit,  li  a 
tho/"h  V     recovery  was  had,  fhould  be  applied  to  the  pay- 

the  party 

was  indebtea  to  him,  and  had  no  vifiDlC  means  of  payment  but  by  recovery,  that 

alone  would  no:  exclude  him^ 


County  of  Litchfield,  August  Term. 

ment  of  a  debt  then  due  to  the  witnefs  from  the 
plaintiff. But, 


By  the  Court. 


•He  is  interefted  and  in- 


admiffible,  as  he  has  a  promife  to  fhare  the  be- 
neht  of  the  recovery,  if  one  is  had  :  Though,  if 
the  objection  went  no  further  than,  that  the 
plaintiS'was  indebted  to  him,  and  had  no  vifible 
means  of  payment,  excepting  by  a  recovery^  it 
would  not  exclude  him,~That  point  has  been 
long  decided. 


7^ 

Benedia 
Biownion  = 


Leavens  WORTH,  adminijlrator  on  the  ejiate  of 
Warner,  againji  Phelps, 

^HIS  was  an  a6lion  of  book  debt.—— The  in  an  aftiou 
account  exhibited  confiiled  of  one  article  '^^l^'f^^^^y^ 
only,  (to  wit)  twenty  half-johannes.  The  charge  an  adminif- 
was  not  in  the  hand  writing  of  the  deceafed.       gTnafentrils 

Mr.  Adams,  for  the  defendant,  moved  that  ofthede- 
the  plaintiff  be  compelled  to  produce  the  origi-  no^abfoiLte- 
nal  entries  of  the  deceafed,  or  fuffer  a  7ion^Juit.  ^v  nec^iTarjr 

Mr.  Hi?iman,  for  the  plaintiff,  flated,  that  by  T/LT"'^" 
accident,  the  original  entries,  which  were  in  the 
hand  writing  of  the  deceafed,  were  totally  loift, 
and  could  not  be  produced — That  the  account 
exhibited  was  made  by  the  attorney,-  in  confe- 
quence  of  direftions  received  from  the  decea- 
fed, in  his  life  time — That  the  plaintiff^  could 
prove  there  had  been  a  charge  in  the  hand  wri» 
ting  of  the  deceafed,  exaftly  correfponding  with 
the  one  exhibited  on  trial,  and  that  the  deceafed 
had  declared  the  fame  to  be  a  juft  charge. 

Mr.  Adams,  in  reply,  faid,  that  if  adminiftra- 
tors  were  permitted  to  fuftain  actions  on  accounts 
made  by  them  in  favour  of  the  deceafed,  from 

fiich 


72  County  of  Litchfield,  August  Ter^u 

^TBtT     ^^^^  information  as  they  might  be  able  to  coU 

==4==     le61,  their  would  be  no  guarding  againft  unjuft 

Leavenfw.  demands  of  this  kind :  For  if  the  original  papers 

tigahij}     were  produced,  it  might  appear  from  them  that 

Phcips.     ^i^g  account  had  been  fettled,  or  that  the  articles 

were  delivered  in  difcharge  of  fome  antecedent 

demand ;  or  much  other  light  might  be  refiefcU 

ed  on  the  fubje6L     That  an  original  entry  was 

a  fpecies  of  evidence  indifpenfibly  necefiary  to 

fupport  a  demand  of  this  kind. 

By  the  Court.- The  action  may  pro- 
ceed without  thofe  entries;  for  if  the  demand, 
under  all  the  circumftances  of  it,  fhould  not  be 
fafficiently  fupported  by  evidence,  the  aftion 
muft  fail.  The  charge  in  the  hand  writing  of 
the  deceafed,  can  only  be  evidential  of  a  right 
of  recovery,  which  may  be  fupplied  by  other 
evirtience,  of  as  great  or  greater'  weight. 


M*D  o  N  A  L  D  and  Others  againjl  Leach. 

A  deed  re-     A   CTION  of  difleifin  : — The  general  iffue 

"4'nliiric'  -^  pleaded.— The  cafe  was,  that  in  the 

to  be  rccor-  year  1775,  Dduiel  Bojlwick  was  negociating  a 
cmr'y  oftha"  loan  of  moHcy  of  McDonald,  of  theftate  of  New- 
kind  made  York.  In  order  to  obtain  the  money,  he  made 
shaufecurca  a  mortgage  deed  to  M'Donald,  of  the  land  in 
title  t.  the  queftion,  carried  it  to  the  regifter  in  New-Mil- 
fhe"day  it°  ford,  whcrc  the  land  lay,  who  received  the  deed, 
7e]lld  ^^'  ^^'^  made  an  entry  on  the  back,  "  received  for 
vithou'c  any  recording.**  At  the  fame  time,  the  regifter 
the'time,  in  ^^o^c  a  Certificate  direBed  to  M'Donald,  that 
v'hichche  Bcjlwick  had  lodged  fuch  a  deed  in  his  office, 
corded'ac'^'  ^vhich  was  entered  on  record.  Bojlwick  alfo 
iingth.  told  the  regiilcr  not  to  record  the  deed  at  that 
time.     The  regiller,  accordingly  wrote  on  the 

deed 


CowNTY  OF  Litchfield,  Aucust  Te&m,  73' 

deed  below  the  entry  firt  made^  ^*  not  r^cori^'*     "^TtI^ 
and  placed  the  deed  in  a  bundle  of  the  fame     =^~~ 
kind,  where  it  remained  till  about  the  year  1783.    McDonald 
Eoflwick  carried  the  certificate,  which  the  regi-     ag<z^^.fi 
fter  had  given  him,  to  M'DonaU,  and  procured     ^«^^^^ 
the  money.     Some  years  after  Eofiwick  convey-, 
ed  the  fame  land  to  Angus  Nickelfc-n^  (there  ap- 
pearing to  be  no  embarraffment  to  the  title,  oa 
record)  and  Nickelfoiz  conveyed  to  the  defend- 
ant; both  of  which  dttds  were  recorded  at  full 
length.— Subfequent  to  this,  McDonald  difco- 
vered  that  his  deed  had  never  been  recorded  at 
full  length.^ — He  fearched  the  office,  found  it^ 
procured  it  to  be  recorded,  and  then  brought 
his  action. 

Mr.  Root  and  Mr.  Reeve^  for  the  plaintiff.—^ 
M'Doncdd's  deed  hdiving  been  lodged  with  th^ 
regifter,  and  the  entry  made,  that  it  was  recei-. 
ved  for  recording,  the  regifter  was  bound  to 
perfe6l  the  record ;  and  no  orders  to  the  con- 
trary, either  from  grantor  or  grantee,  could  go- 
vern him. — By  the  ftatute  refpefting  deeds,  it 
is  ena6;ed,  "  That  no  grant  or  deed,  of  bar- 
"  gain,  fale,  or  mortgage,  made  of  any  houfes 
**  or  lands  within  this  ftate,  ihall  be  accounted 
*^  good  and  efFe6:ual  in  law  to  hold  fuch  houfes 
**  and  lands  againft  any  other  perfon  or  perfons 
**  whatfoever,  but  the  grantor  or  grantors,  and 
**  their  heirs  only ;  unlefs  the  grant,  deed  or 
**  deeds  thereof,  be  recorded  at  length  in  the  re- 
"  cords  of  the  town  where  fuch  houfes  and  lands 
*'  do  lie. 

**  And  the  town  clerk  or  regifter  in  every 
*^  town  in  this  ftate,  fhail,  on  the  receipt  of  any 
**  grant,  deed,  conveyance,  or  mortgage  of  any 
**  houfe  or  land  brought  to  him  to  record,  not^ 
**  thereupon  the  day,  month  and  year  when  he 
*^  received  the  fame,  and  the  recoid  Ihall  bea^f 
'^  the  fame  date.'' 

K  The 


74  County  of  Litchfield,  August  Term. 

iy86.         '^^^^  latter  claufe  of  this  ftatute  is  in  fome  de- 
=====     gree  explanatory  of  the  firft,  and  fliows  that  the  " 
McDonald  entry  of  the  regifter  on  the  deed,  and  the  lodging 
^ia7n^     it  in  the  office,  is  in  judgement  of  law  a  record- 
ing, fo  far  as  to  fecure  the  title ;  and  when  com- 
pleated,  the  title  by  relation  becomes  perfect 
from  the  execution  of  the  deed,--— See  Cowper's 
Reports^  705,  Doevs,  Routledge — 1  Burrow,  474., 
Sir  Edward.  Worjley,  vs.  Dtr/iattos  and  Slader. 

Mr.  Canjield  and  Mr.  Fveritt,  for  the  defen- 
dant, faid,  that  the  conduft  with  regard  to 
M^DonaWs  deed  had  been  fuch,  that  if  it 
fhould  be  -eftablifiied,  it  would  operate  as  a 
fraud  upon  the  prefent  defendant.  He  pur- 
chafed  when  no  incumbrance  on  Bojlwicts  ti- 
tle could  be  found  on  record ;  therefore  he  had 
the  faireft  grounds  to  prefume  none  exifted.  He 
had  purfued  every  legal  method  to  authenticate 
his  title,  and  ought  to  be  fecured  in  the  enjoy- 
ment of  it. — If  the  fame  care  and  attention  had 
been  practiced  by  M^ Donald j  no  injuftice  could 
have  taken  place. 

.  That  McDonald's  deed,  appeared  not  to  have 
been  delivered  to  the  grantee  at  the  time  it  was^ 
lodged  in  the  office  of  the  regifter;  neither  had 
the  confideration  been  received :  Therefore  the 
deed  was  not  valid,  and  the  entries  of  the  regif- 
ter were  of  no  more  confequence  than  thofe  of 
an)^other  perfon.  No  fubfequent  a6l  of  McDo- 
nald could,  by  the  do6lrine  of  relations,  reftorc 
a  title  which  was  defe6live  in  its  origin. 

It  was  obferved  from  the  Bench,  that  the  Juf- 
tice  who  took  the  acknowledgement,  had  figned 
himfelf  as  a  witnefs  to  the  delivery,  which  wa$ 
an  evidence  of  that  fad,  of  too  high  a  nature 
to  be  doubted. 

The  jury  found  a  verdiB:  for  the  plaintiff, 
'^vhich  was  accepted  by  the  whole  court. 

Eldridcr 


County  of  Litchfield^.  August  Term.  75 

Eldridge  againjl  Lane  ^w^^Rosevelt. 
In  Chancery » 

THE  cafe  was.  That  on  the  10th  of  Mareh,, 
A.D.  1783,  the  petitioner,  together  with 
one  Jojhua  Wells  and  Samuel  Doudy  became  ob- 
ligated to  Jared  Lane,  one  of  the  refpondents, 
in  the  fum  of  167/.  165.  lawful  money. — Wells 
and  Doudy  in  confideration  that  the  petitioner 
had  become  bound  for  them,  on  the  fame  day 
executed  to  him  an  indemnifying  bond,  of  fuf- 
hcient  amount  to  fave  him  harmlefs. — In  March 
1784,  Lane  put  the  faid  obligation  in  fuit,  and 
recovered  a  judgement  for  180/.  45-  iid,- — The 
execution  was  levied  on  the  petitioner's  lands^ , 
and  the  whole  contents  fatislied  with  his  proper^ 
ty.^ — In  September,  1784,  the  petitioner  reco- 
vered judgement  again{l,TFe//i  and  Doud,  on  the 
indemnifying  bond,  for  203/.  35.  4_d.  and  115/. 
15.  loi.  on  another  obligation  againft  them.—- 
Gn  the  2 8 til  day  of  January,  A.  D.  1785,  the 
petitioner  caufedthe  executions  which  iffued  on 
thofe  two  judgements,  to  be  levied  on  a  farm 
of  land  belonging  to  Dowi,  which  on  the  21^ 
day  of  June,  1777,  was  mortgaged  by  Doud  to 
Lane,  to  fecure  the  fum  of  350/.  lawful  money^ . 
and  intereft,  due  by  bond  of  the  fame. date,  and 
payable  the  20th  day  of  June,  1779. — A  pay- 
ment had  been  made  on  this  bond,  acknowled- 
ged by  a  receipt  in  thefe  words — "  Received  of 
"  Mr.  Samuel  Doud,  this  i/^th  day  o£  OBoher^ 
"  1778,  the  interejl  of  a  bond  given  by  faid  Doud, 
^^  dated  June  21)?,  1777,  and  due  June  20ih^ 
"  1779,  andisfortheftmof2ff)Ol'  lawful  money  ; 
"  like-wife  250/.  of  the  principal  of  faid  bond — re-^ 
"  ceived  this  day.  Sec.  Jared  Lane.*' 

The  petitioner  fuppofed  at  the  time  of  levy- 
K  2  ing 


76  GO'O^NfETY  Of  LirCKf'ittiS'yAv6tfsTTs;tik, 

""^tT^.     ing  his  executions,  there  was  no  greater  lien 

==■ ^     upon  the  land  than  100/.  and  the  intereft  there- 

Eldridge  of  from  the  20th  of  June,  1779.  "^^"^^^  \2cnd  was 
/?^«/»/  appraifed  to  the  petitioner  at  the  fum  of  his  two 
'  ^'  executions,  under  the  fuppofed  incumbrance 
of  100/.  onl)'.  After  the  petitioner  had  com- 
pleated  his  levy  on  the  land,  Ihud',  with  a  de- 
fign  to  defraud  the  petitioner,  catne  to  an  agreef- 
ment  with  Lane  to  adrnit  there  wa^  (till  due  on 
the  mortgage  about  40O1?.  aind  to  re'litiquifh  ^11 
right  and  title  to  the  equity  of  redemption,  and 
ftirrender  the  mortgaged  land  to  Lane,  in  fatis- 
fkdion  of  what  was  then  d\it\  This  argreement 
was  carried  into  execution  by  the  parties,  ac- 
cording to  the  forms  of  law. 

That  at  the  time  the  petitioner  levied  his  exe- 
cutions on  this  land  there  was  not,  nor  had  there 
been  at  any  time  afterwards,  any  other  eftate 
oi Doud  or  Welhy  which  he  could  obtain:  And 
that,  in  all  thefe  tranfa6tions.  Lane  a6led  for 
Ij^aac  Rofevelty  of  the  city  of  New- York ;  to 
whom  he  had  conveyed,  by  deed  of  releafe,  all 
his  title  to  faid  lands. 

It  alfo  appeared,  that  the  payment  made  on 
the  bond,  and  acknowledged  by  the  receipt  as 
lawful  money,  was  in  fafcl  continental  money, 
about  feven  eighths  depreciated. 

The  prayer  of  the  petition  was,  that  Lane  and 
Rofevelt  be  compelled,  under  a  fuitable  penalty, 
to  quit-claim  faid  land  to  the  petitioner,  on  pay- 
^'■'  ment  of  the  fum  of  100/.  and  the  intereft  there- 
of from  the  20th  of  June,  1779. 

The  court  decreed,  that  the  petitioner  might 
redeem  upon  paying  the  amount  of  the  mortgage 
monies  due,  dedu&ing  the  payment  made  by 
Doud,  at  the  nominal  fum. 


Bradley 


County  o-f  Litchfield,  August  Term.  f7 


B K  A D L E Y  £tnd  OtficTS  againjl  C amp, 


T?  RROR  from  the  court  of  common  pleas,  Aparwer- 
JZj  on  a  bill  of  exceptions. — — The  plaintiffs  bclSg"form- 
being  troftees  to  the  rnfolvent  Q^dAt'6i  Reynold  J'^j^^^^f^^"^" 
Marvin^.  Efq.  brought  their  aftion  of  book-<iebt  /a-^/^  liable 
againft  the  defendant,^  Joel  Camp.     The  gene-  '^^^^^^^""fj, 
ral  ilTue  was  pleaded  and  joiiied  to  the  court;  aii credits 
and  a  judgement  rendered  for  the  defendant.—  ^^^l^^l/^l 
The  cafe,  as  it  appeared  on  trial,  was  then  fta-  thcr  partner, 
ted  in  a  bill  of  exceptions,  and  certiied  by  the  JhiT^pVrt  ^ 
Judge. ■^'— Some  time  m  the  year  1759,  the  de-  ncrshJp  biifi- 
fendant  entered  into  a  copartnerfnip  trade  with  pj'i^i'jcTo- 
Silas  Bingham,  which  extended  only  to  the  pur-  cice  is  giv- 
Ghafing  goods  from   a  eejtain  Mrs.   Webby  at  foludon  ^  ai^d 
Weathersfield,  as  occafion  Ihould  require,  to  on  a  joint 
fupply  a  ftore  in  Saliibury,    in   the  county  of  on^oniy  be 
Litchfield,  for  the  purpofes  of  retaiiin^s^.     This  j'-e^i,  itis 

n-  i-rrii-       ^  it  /-u  matter  oF  a- 

partnerihip  was  diliolved  m  May  1762,  by  mu-  baEcmenr, 
tuai  agreement.     The  diflblmion  was  publiih-  ^^^^^^°  ^%^ 
ed,  by  a  declaration  in  the  hearing  of  feveral  be  taken  oF 
perfons  who  were  called  a&  witneffes  1  and  ne-  J;j  "^^^u^i"^ 
ver  pu^blilhed  in  any  other  manner,  but  wasj  iiw. 
however,  generally  known  in  the  toy^n  of  Sa«- 
liibury.-^By  the  diffolutioii,  all  debts   due  the 

company 


*  Note.---  The  propriety  of  introdaci'ng  hilh  cf  exctp- 
tions  in  this  manner,  has  been  qudftioned  by  foine, —There 
are,  however,  in  EngUili  books,'  many  precedents  for 
this  pradice— '(vid.)  Dovglafs^  Reports ^  363,  B!aq..uierv^» 
Haovokins.'-'i  Blackjl'one^ s  Reports ^  555*  Money  vs.  Leach ^ 
^^Coivper,  i6r,  Mojt-yn-  vs.  Fahfigas.  And  there  may, 
perhaps,  be  much  more  reafon  for  adoptirtg  fuch  a  pfatftice 
here,  where  many  queftions  of  law  are  fubmilted  to  the  ju- 
ry ;  and  if  a  fpecial  verdict  be  found,  no  ot.ber  relief  Cfxii 
be  had  againft  an  erroneous  judgnfent :  But,  iu  tHis  cafe  the 
mode  of  bringing  it'  up,  was  not  contended.,  and  no.  opinion 
©f  cottrt  taken  upon  the  fubje(ft.—i-^  Since  ihe  tri^l  of  this 
caufe,  the  mode  of  bringing  up  a  caufe  by  bill  of  e:^ceptions, 
under  like  circumflances,  has  been  adjudged  lib  gal.  See  the 
ttSe,  Fleming  againft  Fijhsr  and  Bald^m-^  reported  at  large. 


T^  .GouxMTY  OF  Litchfield,  August  TeRx\i. 

i^g^     company  became  the  property  of  Bingham^  who 

"^     -^     became  obligated  to  pay  all  debts  due  from  the 

Bradley     company;  and  for  that  purpofe  gave  to  Campdi 

aganji      promiffory  note  for  2800/.  conditioned  to  in- 

^"^^*      demnify  againfl  all  demands  upon  the  partner- 

fliip.     Gainpy  at  the  fame  time,  received  about 

200/.  for  his  dividend  of  the  profits  which  had 

accrued  upon  their  joint  trade. 

The  account  of  faid  Marvin,  exhibited  on 
trial,  flood  charged  to  Camp  and  Binghaniy  in 
company.  It  contained  only  charges  for  cafli 
advanced,  and  fervices  rendered,  as  attorney, 
in  profecuting  fundry  fuits  at  law,  commenced 
in  the  name  of  Camp  and  Binghamy  for  the  col- 
leftion  of  debts  which  accrued  to  them  in  the 
courfe  of  their  partnerfhip  trade. — This  bufi- 
iiefs  was  undertaken  upon  the  application  of 
Bingham,  in  the  month  of  Augufl,  1762,  fubfe- 
quent  to  the  diffolution  of  the  partnerfhip,  he 
being  the  afting  partner. — Marvin,  living  in 
Litchfield,  did  not  know  of  the  partnerfhip  of 
Camp  and  Bingham,  until  he  was  requefted  to 
undertake  this  bufinefs ;  he  was  then  told  it  was 
a  company  affair — which  alfo  appeared  from  the 
face  of  the  accounts  and  notes  to  be  put  in  fuit ; 
and  he  was  not  then  notified,  nor  did  he  at  any 
time  know  of  the  difTolution.  At  the  fame  time 
this  bufinefs  was  undertaken,  he  did  bufinefs  for 
Bingham,  as  an  individual. 

Camp  had  no  knowledge  that  thefe  fuits  were 
commenced,  nor  did  he  know  that  faid  Marvin 
had  any  demands  on  him  or  Bingham,  for  bufi- 
nefs done  in  their  names,  till  a  fhort  time  be- 
fore the  prefent  aftion  was  inftituted  by  the 
plaintiffs  : — Bingham  having  the  fole  dire8:ion 
of  the  bufinefs  done  by  Marvin,  and  he  alfo  re-^ 
ceived  the  avails  thereof  to  his  own  ufe. 

Subfequent  to  thefe  tranfadions,  and  before 
the  commencement  of  the  prefent  fuit,  Bingham 
died,  a  bankrupt.  On 


COUNTY  OF  Litchfield,  August  Term.  f^ 

.  On  this  cafe  four  queftions  of  law  were  re-     ^^{T%T 
ferred  to  the  court  of  common  pleas  : —  ■ a 

1.  Whether  the  dilTolution  of  the  partnerfhip  Bradley 
wasi  publiflied  in  fuch  manner  as  to  exonerate  ^^^V^ 
Camp  from  the  fubfequent  contracts  of  his  part-  ^"^^° 
ner»  on  the  company's  credit. 

2.  Whether  a  diffolution  of  the  partnerlliip, 
which  refpe61ed  only  the  future  purchafe  and 
fale  of  goods,  though  it  had  been  publiflied  with 
all  the  ufual  forms,  could  affe8;  a  contrad  like 
this,  which  a:ro.fc  out  of  it,  as  a  neceifary  con- 
fequenceo 

3.  Whether,  if  two  or  more  join  in  fuit,  it 
does  not  conftitute  fuch  a  partnerfliip,  or  con- 
nexion, by  holding  out  a  joint  credit,  as  to  ren- 
der them  all  liable  for  the  expence  of  profecu- 
ting,  however  their  feveral  intereils  may  be  in 
the  event. 

4.  Whether,  this  aftion  being  brought  againft 
Camp  alone,  without  any  reference  to  Bingham^ 
ia  the  declaration,  under  all  the  circumllances^ 
can  be  fupported  on  the  prefent  iifue. 

Thefe  were  the  only  points  made  in  the  caufe. 
Judgement  being  rendered  for  the  defendant, 
the  errors  affigned  were,  that  the  court  had  mif- 
taken  the  law  on  each  of  the  points  in  queflion. 

On  the  plea,  in  nulla  eji  erratum,  it  was  now 
argued  in  this  -court. 

Mr.  Reeve  ^nd  Mr.  Kirby.^  for  the  plaintifFs  in 
error. 

,     It  is  an  eftablifhed  principle,  that  in  mercan-  *  ^*/- 
tile  companies,  the  contra8;  of  one  partner,  re^  i  Salk  ^Id 
fpefting  the  partnerfhip,  is  binding  on  the  whole,  ^gz, 
until  notice  of  a  diffolution  be  given. ■''^' — What  2  Black- 
is  proper  notice,  and  whether  it  has  been  given  tone's  Re. 
in  this  cafe,  is  a  queftion  — The  ordinary  way  Q^^^e^^^' 
of  announcing  fuch  tranfaQions  is  by  advertife-  againS 
ment  in  a  public  gazette.     As  each  individual  Smith, 
of  the  company  acquires  a  joint  credit  with  his 

copartners 


8o  County  of  Litchfield,  August  Term. 

"^"787^     copartners  when  that  connexion  is  formed,  no- 
=====     thing  can  be  more   reaibnable,  than,  that  the 
Bradley  difiolution  of  that  conne8;ion  fhould  be  made 
agatnft   known  wherevci'  the  company's  dealings  ex- 
^^^'  tend,   before   either  can   claim  an  exemption, 
from  the  contrails  of  the  other. — In  the  cafe 
of  Fox  againft  Hanbury,  CowpiXy  449,  it  is  ad- 
judged by  the  court  of  King's  Bench,  that,  **  if 
*'*  partners  diffolve  their  partnership,   they  who 
'*  deal  with  either,  without  notice  of  fuch  dif- 
'*  folution,  have  a  right  againft  both.**     That  is 
applying  the  rule  more  ftridly  than  is  neceffary 
in  the  prefent  cafe ;  for  here  was  not  the  rea- 
fonable  and  ufual  mea^s  of  knowledge  given. 

Judge  Ellsv^orth,  mentioned  the  cafe  of 
Jr/ilay,2:i  Hartford,  in  whic^  this  point  had  been 
adjudged.  **  The  cafe  was,  that  an  a6iion  was 
''  brought  againft  William  Imlay,  on  a  contra^ 
^'  made  by  a  partner  of  a  company,  (to  which 
"  Imlay  had  belonged)  after  the  diffolution.— 
^*  It  appeared  that  the  diifolution  had  not  been 
^' properly  publilhed,  and  /m%  was  bolden  to 
""*  difcharge  the  debt.*' 

•    The  cafe  of  Bloxham  and  Fowrdvinier  againft 

2  Black-^"  :'^e//  and  Brooke,  before  Lord  Mansfeld,  com- 

ilone's  Re-  pares  very  exa6lly  with  the  prefent  cafe.t—— 

pons,  999.  *^  There  was  a  partnerjhip  for  feven  years  be- 

*^ "  tween  Brooke  and  Fell;  but  at  the  end  of  one 

"year  agreed  to  be  diffolved,  but  no  exprefs 

'*  diifolution  was  had.     The  agreement  recited, 

**  that  Brooke  being  delirous  to  have  the  profits 

^'  of  the  trade  to  himfelf,  and  Fell  being  deft- 

*'  rous  to  relinquifh  his  right  to  the  trade  and 

**  profits,  it  was  agreed,  that  Brooke  ihoiild  give 

^*  Fell  2i  bond  for  2485'/.  which  Pelihdtd  l>rought 

^*  into  trade,  with  intereil  dXfive  per  cent,  which 

Avas  accordingly  done.     And  it  was  farther 

agreed,  that  Brooke  fhould  pay  t<D  Fell  200L 

per  annuin,  for  fix  years,  if  B^oo-ke  ^^o  ko\\<^^  li-^ 

**  ved 


'"  "^5- 


County  of  Litchfield,  August  Term*  8i 

*^  ved,  as  in  lieu  of  the  profits  of  the  trade  ;  and     "~^_gg"J 
*^  Brooke  covenants,  that  Pell  fhould  have  free     ====^ 
**  liberty  to  infpe6l  his  books. — Brooke  became     Bradley 
"  a  bankrupt  before  any  thing  was  paid  to  PelL      ^i^^^/ 
^'  And  this  aftion  being  brought  for  a  debt  in-     ^^^P-^ 
^^  curred  by  Brooke^  in  the  courfe  of  trade.  Lord 
"  Mansfield  held  that  Pell  was  a  fecret  partner/' 

In  the  cafe  now  under  confideration,  there 
was  not  a  more  exprefs  diffolution  of  the  part- 
nerfhip  than  in  the  one  laft  mentioned  j  for  here 
it  was  all  verbal  j  the  terms  being  agreed  upon, 
two  or  three  witnefTes  only,  were  called  to  hear 
the  declaration  of  the  parties  concerned.  There 
it  was  committed  to  writing,  and  executed  on 
one  fide  and  on  the  other  j  and  though  not  pub- 
lifhed,  it  was  as  eflPeQual.  That  was  a  much 
harder  cafe  than  the  prefent ;  for  Pell  not  only 
loft  all  his  ftock  in  trade,  and  the  profits  cove- 
nanted to  be  paid  him  upon  the  diffolution,  but 
was  fubjeQ:  to  pay  the  fubfequent  debts  of  his 
partner.  In  the  prefent  cafe.  Camp  has  faved 
his  ftock  in  trade,  and  200/.  profit. 

As  to  the  fecond  point, — the  charges  in  this 
cafe  are  of  fuch  a  kind,  that  if  the  diffolution 
had  been  publifhed  with  the  ufual  formality,  it 
could  not  affe^l  the  prefent  demand :  For,  un- 
lefs  there  had  been  an  exprefs  ftipulation  that 
this  bufmefs  fhould  be  performed  upon  the  folc 
credit  of  Binghamy  or  Marvin  had  been  inform- 
ed of  the  terms  of  the  diffolution,  and  that  the 
company  dues  were  affigned  to  Bingham,  and 
had  become  his  fole  property,  it  muft  have  been 
prefumed  a  company  concern,  and  for  the  be- 
nefit of  all  the  partners,  notwithftanding  the  dif- 
folution. The  diffolution  of  a  partnerfhipputs 
an  end  to  any  future  acqueft  of  property  from 
the  joint  occupancy  of  the  company's  funds, 
but  it  leaves  the  partners  the  fame  joint  intereii 
ill  whatever  they  may  have  on  hand^  whether 

L  41 


82  County  of  Litchfield,  August  Term. 

"^"tStT     ^^  ^^  ^"  ftock,  debts  due,  or  in  any  other  form: 

= And  they  ftill  continue  to  be  partners,  and  as 

Bradley  jointly  liable  as  before,  in  every  contra8:  necef- 
againjl  f^ry  to  be  made  for  the  purpofe  of  afcertaining, 
^'^^*  colleQing  and  dividing  their  property.  And 
whatever  compa6l  there  may  be  among  the  in- 
dividuals, to  controul  this  general  authority, 
which  each  one  ftill  retains  of  ufing  the  others 
credit  on  thofe  occafions ;  ftill,  if  that  be  not 
publifhed,  as  well  as  the  diffolution,  it  can  avail 
nothing,  as  it  relates  to  ftrangers. 

The  contra6l  on  which  the  prefent  a61ion  is 
founded,  is  clearly  of  this  kind ;  therefore,  the 
right  of  recovery  is  not  affefted  by  a  publication 
of  the  diffolution. 

As  to  the  third  point. The  demand  in  the 

prefent  cafe  originated  from  the  profecution  of 
fuits  at  law  in  the  name  of  Camp  and  Bingham^ 
for  the  recovery  of  debts  contratled  with  them. 
Here  was  a  joint  intereft  held  up  to  view;  and 
Campy  by  permitting  Bingham  thus  to  ufe  his 
name,  has  empowered  him  to  ufe  his  credit.  If 
Bingham  has  abufed  the  truft  repofed  in  him,  it 
is  much  more  reafonable  that  Camp  fhould  fuf- 
f  I.  Sal-  tain  the  lofs,  than  a  ftranger.t  Agreeable  to 
keld,  289,  this  is  the  cafe  of  Carvick  againft  Vicktryy  Doug. 

Nfckols.  "  This  was  an  a6lion  by  the  indorfee  of  a  bill 
Holt  462,  "  of  exchange,  which  was  in  the  following  form: 
S.  C.  "  Mr.  Abraham  Vickeiy, 

Durnf.  12.       «  T^^^o  months  after  date,  pleafe  to  pay  tons 
bert  ^^  ^^^^  07'de7',  the  lum  or,'*  &c. 

againji  *'  Johu  Marydzucll, 

Mather.  *«  John  MarydweU,  jun. 

**  It  was  endorfed  thus — Jolin  Marydwell/]wi\. 
**  The  Marydwclh  were  father  and  fon.     The 
"  endorfement  was  by  the  fon.     They  were  ad- 
"  mitted  not  to  be  partners.     The  bill  when 
"  due,  was  prcfented  to  the  defendant,  and  ac- 

"  cepted ; 


County  of  Litchfield,  August  Term.  83 

"  cepted ;  and  at  the  fame  time  he  wrote  upon     '^i^'T 
*'  it  a  direction  to  his  banker  to  pay  it.     The     ===== 
*^  plaintiff  was  non-fuited,  becaufe  there  was  not     Bradley 
**  an  endorfement  by  both  the  parties  to  whofe      n^^^^fi 
•*  ordpr  the  bill  was  made  payable.     A  new  trial        ^^^' 
**  was  moved,  on  the  ground,  that  the  Marydwelh 
**  by  joining  in  the  fame  bill,  and  holding  them- 
*'  felves  out  to  the  world  as  partners,  fliould 
**  therefore,  for  that  purpofe,   be  treated  and 
"  dealt  with  as  fuch ;  and  confequently  the  en- 
*'  dorfement  of  one  was  binding  on  the  other. 

"  After  argument.  Lord  Mansfield  delivered 
**  the  unanimous  opinion  of  the  court,  that  the 
**  Marydwellsy  by  making  the  bill  payable  **  to 
**  our  ordeTy^  had  made  themfclves  partners  as 
**  to  this  tranfa6lion.'* 

In  the  prefent  cafe  there  was  as  much  ap- 
pearance of  a  joint  intereft,  as  in  the  lail  men- 
tioned, and  more  injuftice  might  be  done  by  not 
treating  it  as  fuch. 

The  4th  point — whether,  under  the  general 
iffue,  the  defendant  may  take  exception,  that 
his  partner  is  not  defcribed  in  the  declaration 
as  having  jointly  contracted  the  debt  with  him. 
— This  point  is  fully  fettled  in  the  books. 

Contracts  of  this  kind  have  ever  been  held  to 
be  joint  and  fcvcral  v — Being  feveral,  either  of 
the  debtors  may  be  proceeded  againft  at  the  op- 
tion of  the  creditor.  And  it  cannot  be  cffential 
to  the  a8:ion,  that  the  debt  be  defcribed  as  con- 
trailed  in  company  with  another  perfon.  If  it 
be  neceffary  thus  to  declare,  it  is  merely  for  the 
advantage  of  the  defendant,  that  he  may  be  bet» 
ter  notified  of  the  nature  of  the  demand ;  there- 
fore, being  only  matter  of  form,  the  exception 
can  never  be  taken  but  in  abatement.  If  the 
defendant  neglefts  to  take  his  exception  at  the 
beginning  of  the  fuit,  he  is  fuppofcd  to  have 
waved  it.     Thcfe  principles  are  fully  cltabiifh- 

L2  ed^ 


$4  County  of  Litchfikld,  August  Term. 

~ygy,     ed,  in  the  cafe  of  Rice  vs.  Shute,  2  Bkckjlone, 

=        "     697* — alfo,  Abot vs.  Smithy  ibidem  g^j-Sayer vs.- 

Bradley     ChaytoTy  Lutwyche  216 — and  Gilbert  vs^,  Bath, 

Calf       '  "^^^^  5°3' 

^*  The  cafe  of  Whitccmh  vs.  Whitmg,  Douglafi 

•5  Burrow,  ^29,  furnifhes  a  precedent  for  this  mode  of  de*» 
26ii,b.  .  blaring;  *' The  declaration  was  m  common 
*'  form,  on  a  promiffory  note  executed  by  the 
'*  defendant.  The  general  iffue  was  pleaded  j 
*'  and  alfo  non  ajfumpjit  infra  fex  annos ;  rcplica- 
*'  tion,  ajfumpjit  infra  fex  annos.  On  trial,  the 
"  plaintiff  produced  a  joint  and  feveral  note, 
*'  executed  by  the  defendant  and  three  others." 
This  a8:ion  proceeded,  and  no  queftion  was 
made  as  to  the  propriety  of  the  procefs. 

Mr.  Canjield  and  Mr.  Strong y  for  the  defend* 

ant. In  this  cafe  there  appears  to  have  been 

a  copartnerfhip  between  the  defendant  and 
Bingham,  It,  however,  extended  only  to  a  fm- 
gle  (lore  of  goods,  and  the  authority  that  each 
had  to  contra6t  for  the  other,  was  reftrained  to 
a  fmgle  perfon.  Under  fuch  circumftances,  no- 
thing more  was  neceffary  to  deftroy  that  autho- 
rity, than  to  make  the  dilfolution  of  the  compa- 
ny as  extenfively  known,  as  the  exiftence  of  it. 
That  was  done  in  this  cafe  :  It  does  not  appear 
that  the  partnerfhip  had  ever  been  heard  of  out 
of  the  town  of  Salifbury,  except  by  Mrs.  Webb^ 
at  Wethersfield,  with  whom  they  traded ;  and  it 
is  clear,  that  the*  creditor  in  this  cafe  had  no 
knowledge  of  it  till  the  time  of  the  contrail. 
Why,  then,  ought  he  to  complain  that  he  had 
not  notice  of  the  diffolution,  when  he  did  not 
know  of  the  company  ?  It  is  an  idea  not  found- 
ed in  reafon,  that  the  diffolution  of  every  com- 
pany of  merchants  muft  be  made  known  beyond 
ihe  limits  of  their  ufual  dealing.  Notice  would 
never  be  neceffary,  but  upon  this  ground, — that 
the  company,  by  reputation,  having  gained  a  cre- 
dit, 


J 


Camp. 


County  of  Litchfielb,  August  Term.  S^ 

dit,  feme  a8;  of  equal  notoriety,  muft  take  place     ^TsT" 
to  put  an  end  to  it.      If  this  line  be  once  pafT-     ===4=4^ 
ed,  the  partners  can  never  be  fecure  againft  each     Bradley 
other;  for  fome  one  may  always  go  where  the     ^aifij^ 
company  hath  nat  been  known,  and  contra6l  up^ 
on  the  credit  of  it. 

It  appears  in  this  cafe,  that  at  the  fame  time 
this  debt  was  contrafted,  Marvin  was  tranfaB- 
ing  the  fame  kind  of  bulinefs  for  Bingham^  on 
his  own  credit.  It  cannot  therefore  be  fuppo- 
fed,  that  the  credit  of  a  company  which  he  had 
never  before  heard  of,  was  the  inducement  to 
undertake  the  profecution  of  thofe  fuits.  This 
idea  is  corroborated  by  the  length  of  time 
which  hath elapfedfince  the  debt  was  contracted. 
Had  Ma7'vin  originally  confidered  Cavrip  to  be 
his  debtor,  he  would  undoubtedly  have  demand- 
ed payment  long  before  this  time  :  And  had  the 
demand  been  within  the  life  of  Bingham,  Camp 
might  have  indemnified  himfelf.  Camp,  having 
no  knowledge  of  the  contra61:,  nor  any  notice  of 
the  debt,  it  is  unreafonable,  at  this  diftance  of 
time,  that  he  fhould  be  holden. — The  aftion  of 
book  debt  is  founded  on  equitable  principles ; 
and  although  yin^j  jW^5,  there  might  be  a  right 
of  recovery ;  yet  the  court  will  duly  weigh  every 
circumftance,  that  has  equitably  intervened  in 
favour  of  the  defendant. 

As  to  the  laft  queftion,  it  does  not  reft  fimply 
on  this,  whether  there  be  a  defe6l  in  point  of 
form ;  but  the  plaintiffs  have  declared,  as  upon 
a  contract  with  Camp  only ;  the  iffue  is,  that  the 
defendant  is  not  indebted  in  the  manner  and 
form  of  the  declaration. — The  evidence  exhi- 
bited on  the  trial  is  a  contra8:  with  Cavip  and 
Bingham.  This  does  not  fupport  the  iffue.  It 
is  a  debt  of  a  different  defcription ;  and  a  reco- 
very in  the  prefent  cafe  cannot  be  pleaded  in 
bar  of  another  aQion  upon  the  latter  contra6t  ^ 

for 


86  County  of  Litchfield,  August  Term. 

^Tgl~     for  the  record  will  not  fhow  it  to  be  the  fame. — 
=r==     The  cafe  of  Leglife  vs.  Champante,  2.  Strange^ 

Bradley     820,  is  in  point. "  There  it  appeared  on 

^ain/t  "  evidence,  that  the  plaintiff  had  a  partner,  who 
^^P*  *^  ^T^s  not  party  to  the  adion  :  And  the  Chief 
"  Juftice  (Lord  Raymond)  held,  that  if  it  was 
"  an  ajfumpjity  it  might  be  taken  advantage  of  at 
"  the  trial,  for  it  would  not  be  the  fame  contra6l, 
**  but  it  ought  to  be  pleaded  in  abatement  in  the 
"  cafe  of  a  tort." 

The  Chief  Judge  i  mentioned  a  cafe  which  had 
been  determined  upon  the  authority  of  the  cafe 
now  read  from  Strange ;  but  faid  the  later  au- 
thorities were  the  other  way. 

Judgement  of  the  court  of  common  pleas 
reverfed. 

By    the  whole   Court.- A  copartner- 

fhip  in  trade  being  formed,  the  partners  become 
liable  to  be  jointly  charged  for  all  fervices  done, 
or  credits  given  at  the  requeft  of  either  of  them, 
relating  to  the  bufinefs  of  the  copartnerfhip  ; 
and  fo  continue  liable  till  public  notice  is  given 
of  the  copartnerfhip's  being  diflblved.  This  is 
neceffary  for  the  benefit  of  trade,  and  to  prevent 
impofition;  and  fo  far  as  the  right  each  partner 
derives  from  the  formation  of  the  partnerfhip, 
%o  contra6l  for  the  company,  relates  to  credi- 
tors, that  right  is  not  vacated,  until  public  notice 
of  a  diflblution  is  given. — CowpeVy  449,  Fox  vs. 

Hanbury, In  the  prefent  cafe,  this  notice  was 

not  given,  nor  had  the  creditor  any  knowledge 
of  the  fa6l.  He  might  well,  therefore,  charge 
the  partners  in  company  ;  more  efpecially,  as 
the  fervices  he  rendered  were  prima  facie  for 
their  joint  benefit,  being  the  prolecution  of  fuits 
in  their  joint  names,  and  which  arofe  out  of  the 
company  tranfa8;ions. 

There  can  be  no  doubt  but  a  right  of  aBion 
furvived againft  the  furviving  partner;  efpecial- 

Iv 


County  of  Litchfielb,  August  Term. 

l}^  if  it  be  confidered,  that  all  company  contra&s 
are  in  their  nature  joint  and  feveral :  And  as  to 
the  manner  of  bringing  this  fuit^  it  might  have 
been  well  for  the  purpofes  of  certainty,  and  be- 
nefit of  the  defendant,  in  preparing  his  defence, 
to  have  declared,  that  the  debt  was  contracted 
by  the  defendant  in  company  -with  Bingham: 
But  a  failure  thus  to  declare,  was  only  pleada- 
ble in  abatement,  and  could  be  of  no  avail  un- 
der the  general  iffue,  on  which  the  caufe  was 
tried.*  For  it  doth  not  faliify  a  charge  of  debt 
againft  one,  to  fliow  that  another  is  aifo  indebt- 
ed, and  might  have  been  joined  in  the  fuit :  Nor 
doth  the  law  require  the  fame  circumftantiab'ty 
and  precifion  in  declaring  upon  fpecialities,  or 
other  waitings  of  which  there  is  a  profit,  as  on 
a  fpecial  afTumpfit,  where  the  defendant  has  no 
means  of  identifying  the  contra6l  but  from  the 
declaration ;  and  a  fmall  variation  between  the 
allegations  and  the  proofs  may  be  fatal. 

Therefore,  the  judgement  of  the  court  of  com- 
mon pleas  was  reverfed. 


h 

Bradley 
Camp. 


*  2  Black- 

aont-'s  Re- 

foru  697, 

Pvice 

vs 

Shute. 

5  Burrow, 

2611.  S.C, 

2  Black- 

ftone,  947, 

Abot 

vs 
Smith. 


T 


The  State  againjl  William  Grken. 
HIS  was  an  indictment  for  adultery.- 


After  verdict,  Mr.  Reeve  and  Mr.  Tracy, 
counfel  for  the  prifoner,  moved  in  arrefl.    They 
lliowed  for  caufe, — ^That  the  teftimony  produ- 
ced againft  the  prifoner,  on  trial,  was,  that  fome  ^* 
perfons  fufpefting  faid  Green  to  be  with  Tryphc-  ^afej  the 
na,  wife  of  Saviuel  Rojj'etar,  at  9  o'clock  in  the  monV^hicii 
evening  of  the  10th  day  of  May  1786 ;  and  that 
they  fet  out  to  go  to  the  houfe  of  RoJJetar,  and 


The  ]my  arc 
to  judgd  of 
the  weight  of 
evidence, 
taking  into 
con/id  e  ra- 
tion, every 
circi:m- 
ancc  »  f  ilie 


is  ihomghc 
by  themfuf- 
£cientto 
convJ&oa 
an  inA'Ck' 
ni'ut  for 
j.^nltcry,  isconcliifive  aficr  vcrdiftj  even  ifcLe  court  should  be  cf  adifFc.cniopiniow 


were  told  that  laid  2\yphcna  had  faid  iht  fliould 


W.Green, 


88  County  of  Litchfield,  August  Term, 

^"786^  lodge  at  a  neighbour's  houfe  that  night:  They, 
,ts=-i — 1  however,  went  to  the  houfe,  and  found  the  doors 
The  State  fattened.  They  then  went  to  the  neighbour's 
agauiji  houfe  mentioned,  and  found  fhe  was  not  there. 
— They  returned  again  to  Rojfetar's  houfe,  and 
having  heard  fome  perfon  nailing  a  window, 
they  looked  in  and  found  Green  in  bed  with  faid 
Tryphena,  a  little  after  10  o'clock  in  the  even- 
ing ;  and  fhe  was  feen  to  turn  from  Green  while 
in  bed  undrefTed  :  Which  fa61:  was  not  conteil- 
ed  by  the  counfel  afTigned  for  the  prifoner ;  but 
the  whole  matter  in  difpute  was,  whether  that 
fatl  was  fafficient  to  convi6l  upon  the  ftatute 
againft  adultery  i—^And  that  the  verdict  was 
found  againft  law. 

For  the  prifoner  they  urged,  that  this  was  not 
proof  of  the  crime  of  adultery ;  though  it  was 
imdoubtedproof  of  a  different  crime  of  a  lower 
nature,  for  which  the  legiflature  have  exprefsly 
provided  a  punifhment,  by  ftatute  ;  which  is — 
"  That  if  any  man  be  found  in  bed  with  another 
**  man's  wife,  the  man  and  woman  fo  offending, 
"  being  thereof  convifted,  ftiall  be  feverely 
"  whipt,  not  exceeding  thirty  ftripes." — This 
ftatute  was  exprefsly  provided  for  cafes  like  the 
prefent,  where  clear  proof  cannot  be  had  of  the 
a6l  of  adultery  ;  for  the  law  will  not  punifti  men 
with  the  feverity  affixed  to  the  crime  of  adulte- 
ry, upon  mere  prefumption. 
The  motion  over  ruled. 

By  the  whole  Court. The  jury  arc 

by  law  the  proper  judges  of  the  weight  of  evi- 
dence, on  the  whole  circumftances  of  the  cafe : 
And  although  the  prifoner,  by  the  fame  tefti- 
mony,  might  have  been  proceeded  againft  and 
convi6led  on  another  ftatute,  for  a  lower  of- 
fence ;  yet  it  cannot  from  thence  be  inferred, 
that  the  evidence  vvas  not  futlicient  to  convid 
him  of  adultery. 

Noic. 


County  of  Litchfield,  August  Term.  89 

Note.' — In  this  cafe  motion  was  made  for  the     "^"^"f^ 
admiffion  of  a  witnefs,  to  prove  that  the  prifon-     ===4^=== 
er,  at  a  time  previous  to  the  crime  alledged,  hi-  The  State 
red  this  witnefs  to  go  to  the  houfe,  and  fee  whe-      ^i^^'^J^ 
ther  the  woman's  hufband  was  at  home.  W.Cjrreea. 

Objefted  by  the  prifoner's  counfel,  becaufe 
it  was  no  part  of  the  fads  alledged  in  the  indiQ:« 
ment. 

The  witnefs  was  admitted :  For, 

By  the  whole  Court. Though  it  is  no 

part  of  the  direB  charge  in  the  indiftment,  it  is 
a  circumftance  which  leads  to  the  crime. 


N  o  N  I  M  o  u  s. 


THE  Court  f aid  it  was  an  ejiablijhed  rule,  when 
judgement  is  arrejled  after  verdiBfor  the  infujfici^ 
tncy  of  the  declaration,  not  to  tax  cojl  on  either  fide* 


Oii  final 

Mills  ^^^m/2BisH0?.       .  Mgi^ent:  lu 

o       J  r  vorofa 

THIS    cafe   was   determined   on   pleas    in  aft^eTab/ce- 

abatement  the  laft  term,  and  the  plain-  mentanda- 

tiff  allowed  to  amend  on  paying    coil :    Final  The  piaiS 

judgement  being  now  rendered  for  the  plain-  shaii recover 

tiff,   he   offered  his  whole  coll  to   be  taxed  j  tecedeVtco' 

but  it  was  ruled  by  the  whole  court,   that  the  ^Jje^f.^'e^f' 

plaintiff  ftiould  recover  no  coll  antecedent  to  cepti'ng 

the  abatement,  excepting  writ,  duty,  and  offi-  Tnd  officL 

cers  fees,  fees. 


The  defend- 
ant: c.'.nnoc 


Wooster  a,9:ainfl  Simons.  d  murto 

•^       *^  the  declar.v 

THIS  cafe  was  tried  at  the  court  of  common  ^"yVnl^^' 
pleas,  on  the  general  ifliie,  and  a  verdi8:  pleaded  to 
for  the  plaintiff. The  defendant  m.oved  in  ^  ^^' 

M 


9^ 


__i7_86. 

Woofler 
againji 
Simons. 


County  of  LiTcfifFiEii),  August  Terw:. 

arreft,  becaufe  of  the  infufficiency  of  the  decla- 
ration; which  was  over  ruled. — The  defendant 
then  appealed;  and  before  this  court,  moved 
for  leave  to  demur  to  the  declaration ;  which 
was  denied  hy  the  court :  Becaufe,  by  ftatute,  the 
defendant  having  pleaded  to  iffue,  and  judge- 
ment thereon  heen  rendered,  fhall  not  demur. 


Grant  againji  Jackson. 


DccLiratlon, 
««  chat  the 
defendant 
receivci  of 
the  pljintiff 
Z9I.  6s.  8d. 
in  oidrs  on 
the  one 
shilling 
cax,  which 
he  pramifed 
to  return  or 
account 
fur;'*  hd- 
|tidgtd  in* 
fufficicnt  for 
imcerfrainty. 


ASSUMPSIT. The  declaration  is,— 
"  That  on  the  2^d  day  of  Sept.  1784,  the 
"  defendant  received  of  the  plaintiff  29/.  6s,  Sd. 
"  in  orders  on  the  one  fhillingtax;  which  orders 
"  the  defendant  then  and  there  promifed  to  re- 
'^turn  to  the  plaintiff  by  the  firfl  day  of  July 
"  then  next,  or  to  account  with  the  plaintiff  for 
"  faid  orders  in  fome  other  way,  by  faid  time ; 
"  as  appears  by  a  writing  under  the  defendant's 
"  hand,  of  the  date  above,  ready  in  court  to  be 
"produced.** 

To  this  declaration  the  defendant  demurred 
generally. 

Mr.  Strong,  for  the  defendant,  took  two  ex- 
ceptions : — 

1.  The  declaration  is  fo  vague  and  uncertain, 
that  no  legal  judgement  can  be  founded  there- 
on. It  does  not  point  out  the  kind  of  order* 
with  that  certainly  that  the  value  can  be  afcer- 
tained. 

2.  The  aQion  is  mifconccived,  for  by  the 
plaintiff's  own  fliewing  the  defendant  was  to  ac- 
count ;  the  aftion  therefore  ought  to  have  been 
account  and  not  aJJ'umpfit, 

Mr.  Tracy  for  the  plaintiff. The  declara- 
tion counts  truly  on  the  writing,  and  flates  the 

whole 


County  of  Litchfield,  August  Term.  91 

whole  of  it ;    it  could  not   with  propriety  go     ^"^"^ 
any  further. — The  defendant   fuffers  no  difad-     ==4==i 
vantage ;  for  he  is  fufficiently  notified  of  the      Grant 
nature  and  kind  of  the  demand. — If  there  be     againfi 
any  uncertainty  refpefting  the  damage  to  be    J^^^^°"* 
affeffed,  it  may  be  aided  by  evidence. 

As  to  the  fecond  exception,  affumpfit  will  lie 
in  all  cafes  where  there  is  an  exprefs  under- 
taking to  account. — 1.  Salkeld,  g.  Wilkin  vs. 
Wilkin, — 1.  Bacon's  Ahr.  tit,  ajfumpjit,  (A.) 

By  the  whole  Court. The  declara- 
tion is  infufficient;  it  gives  no  rule  of  damages. 
The  orders  which  the  defendant  is  challenged 
to  account  for  being  no  otherwife  dcfcribcd 
than  as  drawn  oh  the  one  fhilling  tax  ;  and  as 
it  doth  not  appear  by  whom  or  by  what  autho- 
rity they  were  drawn,  of  on  which  of  the  one 
fhilling  taxes,  as  divers  have  been  granted  and 
were  of  different  values,  there  is  no  rule  given 
to  the  court  by  which  to  afcertain  their  valuc^ 
or  affefs. damages  for  not  re-delivering  or  other- 
wife  accounting  for  them. 


The  Ecclefiaflical  Society  of  South-Farms,  in 
Litchfield,  againjl  George  Beckwith. 

ACTION  for  breach  of  covenant. — The 
declaration  was,  that  the  plaintiffs  having 
called  the  defendant,  in  the  cuftomary  way  of 
caMing  candidates  for  the  miniftry,  to  fettle  with 
them  as  a  gofpel  minifler ;  and  he  having  cove- 
nanted and  agreed  to  the  fame  ;  for  the  better 
underftanding  and  mutual  advantage  of  the 
parties,  at  Litchfield,  on  the  2 2d  day  of  OQober 
1772-,  the  plaintiffs  and  defendant  covenanted 
M  2  and 


92      "         County  of  Litchfield^  Au^gust  Term. 


lySS,  ^^^  agreed,,  among  other  things,  as  follows  : 
=====  viz.  "  The  church  dLndJbciety  (meaning  the  church 
South-  ^\  formed  in /aid  fociety,  and  the  inhabitants  of 
^^^%?/'  ^'  f did  fociety )  engage  to  fupport  Mr.  Beckwiih^ 
BcdTwiih.  **  during  his  natural  life,  and  to  give  him  135/. 
"  on  the  day  of  his  inftallation  ;  and  if  not  paid 
"  at  that  time,  to  pay  him  the  interefl  thereof 
"  till  paid.  Alfo  to  pay  him  6^L  more,  with- 
*'  in  two  years  from  faid  time,  and  if  not  then 
"  paid,  to  pay  him  the  interefl  thereof  till 
"  paid.  All  this,  the  faid  church  and  fociety 
"  agree-  to  pay  Mr.  Beckwith  as  a  fettlement. 
"  And  the  faid  Mr.  Beckwith,  on  his  part  doth 
"  hereby  agree  to  accept  the  above  offer,  and  en-* 
"  gage  to  become  the  minifter  and  pallor  of  faid 
"  church  upon  their  prefent  cftablifliment ;  and 
•*  to  ferve  faid  church  and  fociety  in  the  gofpel 
*'  miniftry,  as  God  fiiall  give  him  ability,  during 
**  his  natural  life;  and  not  to  vary  or  go  off 
''  from  faid  eftablifhment,  without  a  majority 
**  of  faid  church  2ind  fociety  colleftivcly,  except 
■^  •'  he  fprfeit  (if  it  be  immediately)  his  whole  fet- 
*'tlement;  if  after  but  one  year  from  the  time 
"  of  his  fettlement,  then  190I.  thereof;  if  after 
**  two  years,  then  iSol. — and  fo  on  in  the  fame 
*'  proportion,  according  to  the  number  of  years 
'*  he  continues  to  be  their  paftor,  till  twenty 
*'  years  are  expired,  if  God  pleafe  to  fpare  his 
*'  life,  and  continue  faid  near  relation  till  after 
*^  that  time,  when  after  that  there  fliall  be  no 
**  forfeiture  of  fettlement."  Which  covenant 
was  well  executed  under  the  hands  and  feals  of 
a  committee  lawfully  authorifed  by  faid  church 
2ind  fociety,  and  by  the  defendant,  dated  the  22d 
day  of  Oftober  1772  ;  as  appears  by  faid  cove- 
nant ready  in  court  to  be  fliown. 

And  the  plaintiffs  fay,  the  eftablifhment 
which  the  defendant  in  faid  covenant  agrees  and 
promifes  not  to  vary  or  go  off  from,  without  the 

majority 


County  of  Litchfield,  August  Tei^m.  93 

majority  of  faid  church  ^nd fociety,  under  the  pe-  ""^"57 
naky  of  forfeiting,  as  is  mentioned  in  faid  cove-  =^=^=^ 
nant,  was  underftood  and  meant  by  the  parties  South- 
at  faid  time,  to  be  the  eftablifhment  or  mode  F^^^s 
of  church  difcipline,  then  pra8:ifed  by  faid  ^;^^i.^ 
church  2indfociety  ;  which  was,  as  the  defendant 
very  well  knew,  the  fame  eftablifiiment  adopted 
in  general  by  prefbyterians,  and  congregational 
churches  in  the  ftate  of  Conne6licut,  commonly 
called  Saybrook-Flaiform  ejlablijliment,  or  form 
of  church  difcipline.  And  that  faid  135I.  and 
faid  65L  promifed  to  the  defendant  in  faid  cove-  \ 
nant,  was  meant  lawful  money,  and  in  lawful 
money  was  aQually  paid  to  the  defendant  by  the 
plaintiffs,  agreeably  to  the  covenant  aforefaid. 
Yet,  the  defendant,  not  ignorant  of  the  premif-. 
es,  and  difregarding  his  covenant  and  agree- 
ment, on  the  5th  day  of  January  1773,  know^ 
ing  he  was  liable  to  cenfure  for  fome  of  his  con«- 
du8;,  and  being  called  upon  by  the  affociation 
for  Litchfield  county,  to  anfwer  for  his  faid 
condu8:.  To  obey  which  requeft  of  the  alToci-- 
ation,  the  defendant  was  obliged  by  the  known 
conftitution,  and  eftablifiiment  of  faid  churchy , 
and  all  the  churches  adopting  Say  brook-Flat- 
Jorrriy  for  a  mode  of  difcipline.  And  for  the 
purpofe  of  avoiding  afcrutiny  of  his  conduB,  by 
faid  affociation,  privately  convened  the  mem- 
bers of  faid  churchy  and  without  the  knowledge, 
or  confent  of  the  inhabitants  of  faid  fociely,  the 
defendant  and  majority  of  faid  churchy  paifed  a 
number  of  votes,  or  propofitions,  refpetiing  the 
mode  of  church  difcipline,  for  their  future  prac- 
tice ;  which  they  attempted  to  fupport  and  coun^ 
tenance  by  m.any  fcripmre  proofs,  totaily  hih- 
verfive,  and  dire6lly  contrary  to  the  plan  of 
church  difcipline,  formerly  adopted  by  faid 
church;  and  direftly  contrary  to  I'e  p'aii  or 
mode  of  church-government,  which  v/;is  mean'i 

and 


94  County  or  Litchpield,  August  Tekm. 

jTgg^     and  intended  by  the  parties  in  faid  covenant^ 

===:=     not  to  be  varied  or  altered  by  the  defendant^ 

South-      without  his  incurring  the  forfeitures  mentioned 

Farms      j^  faid  covenant.      Particularly,    the  plaintiffs 

u^ff '•  u     fay,  the  majority  of  faid  ihurchy  under  the  in- 

tiuence  and  mitigation' ot  the  defendant,  and  to 

avoid  a  fcrutiny  of  his  conduct  as  aforefaid— 

voted  in,  agreed  to,  and  have  ever  fince  a6led 

upon,  until  the  defendants  difmiffion  from  faid 

fociety,  among  many  propofitions,  the  following,^ 

viz. 

**  That  all  powers,  authorities,-capacities,  and 
"  privileges,  which  in  the  holy  fcriptures  are 
*'  faid  to  belong,  or  appertain  to  the  church  of 
"  Chrift,  do  belong  to  every  particular  church  ; 
"  and  that  every  fuch  particular  church  is  ref- 
"  ponfible  to  Jefus  Chrifl  for  the  exercife  cf 
•'  fuch  powers,  abilities  and  privileges,  to  them 
*'  by  him  annexed ;  and  confequently  by  divine 
"  conftitution  are  inherent  and  effential,  and  fo 
*'  can  never  be  transfered  or  affigned  over  to 
**  Others.  And  therefore  it  is  the  intereft  and 
"  effential  right  of  every  particular  church,  to 
'*  choofe  its  own  pallor,  and  all  means  requi-i 
*'  fite  and  neceffary  to  render  fuch  a  choice  ef- 
*'  fe6lual.  Alfo  to  exercife  difcipline  over  its 
*'  own  members,  according  to  the  will  of  Chrift  j 
"  and  that  no  othtr  churchy  confociation  of  church- 
"  es,  or  ecckjiajlical  council  whatever,  has,  or  can 
"have,  any  right  authoritatively  to  intermeddle 
"  with  matters  of  this  kind.  And  that  therefore, 
*'  the  claims  made  by  the  affociation  of  Litchfield 
"  county^  to  examine  all  licenfed  candidates  for 
**  the  miniftry  before  they  may  give  an  anfwer 
^'^to  an  invitation,  or  accept  an  invitation  to  the 
"  paftoral  office  in  faid  county;  alfo  the  late 
**  claim  of  the  confociation  of  faid  county,  to 
"  exercife  an  exclufive  right  of  ordaining  to  the 
•*  paftoral  office  s  and  authoritatively  and  deci- 

**  fively 


County  of  Litchfibld,  August  Term.  9^ 

"**  {ivcly  determine  matters  ecclefiaftical  within     ""^{T^, 
"  faid  county,  is,  iri  the  opinion  of  this  church,     =:==« 
"  an  infringement  upon   chriftian  liberty,   and      South- 
^*  inconfiftent  with   the  fimplicity   of  the  gof,      P&^ms 
"pel,   and   the   rights   of  churches  ;    and  that  BeSuIi. 
"by  the  laws  of  Jefus  Chrift,   this  church  is 
"  indifpenfibly    obliged   not  to   fubmit  to    a- 
"  ny   authority,    claimed  as   aforefaid.      And 
"  that   it  is  the  opinion  of  the   church,  upon 
"  mature    deliberation,    that    the    articles    of 
"  agreement,  fas  they  are  called)  confidered  as  a    ^ 
"  fyftem,  faid  to  be  entered  into  by  the  church- 
"  es  in  Litchfield  county,  ought  never  to  be,  or 
**  to  have  been  confidered  as  a  rule  to  be  obferv- 
"  ed  by  this  church,'*     As  by  faid  vote  or  pro- 
pofition  ready  in  court  to  be  produced^  may  ap- 
pear; dated  January  the  5th  day^  A.  D.  1773- 

Which  condu6l  of  the  defendant,  in  varying, 
going  off  from,  and  entirely  altering  the  eftab- 
lifliment  of  faid  churchy  as  to  difcipline,  and  with- 
out the  knov^ledge  or  confent  oHsdd  fociety,  was 
a  direQ  violation  of  his  covenant  with  the  plain- 
tiflPs,  as  mentioned  above.  And  by  which  con- 
duft,  the  plaintiffs  fay,  he  has  forfeited  his  fet- 
tlement,  according  to  the  tenor  of  faid  cove- 
nant; and  by  which  means  they  are  entitled  by 
law  to  recover  of  the  defendant,  as  they  fay, 
500I.  lawful  money. 

To  this  declaration,  Mr.  Adams  and  Mr. 
Canfield,  for  the  defendant,  demurred  general- 
ly J  under  which  they  took  the  following  excep- 
tions : 

1.  The  declaration  does  notfet  forth  with 
fufficient  certainty,  what  the  conftitution  of  the 
church  was,  fo  as  to  admit  of  proof  or  difproof ; 

it  is  only  flated  by  way  of  innuendo.  ^ 

2.  That  the  whole  matter  is  merely  fpiritual. 
It  is  only  whether  the  defendant  has  taught  the 
beft  fcripture  do6lrine  ;  which  is  a  matter  the 
court  can  never  take  cognizance  of. 

3.  The 


96 

South- 
Farms 
againjl 
Beckvvitk. 


County  or  Litchfield,  August  Term. 

3.  Thifdefcndant  only  a8:ed  as  moderator  of 
the  church  meeting ;  and  the  votes  alledged  as  a 
breach  of  his  covenant,  were  the  a8:of  the  church, 
and  not  his  a6l,  or  imputable  to  him  as  a  fole 
tranfaftion  ;  which  only  could  be  a  breach  on 
his  part ;  for  no  a8:  of  the  church  can  be  im- 
puted to  the  defendant,  either  as  a  breach,  or 
fulfilment  of  the  covenant. 

4.  There  is  nothing  dated  in  the  declaration, 
which  can  operate  as  a  rule  of  certainty,  where- 
by damages  may  be  given  ;  for  it  is  no  v^^here 
averred  at  Vv^hat  time  the  defendant  was  ordain- 
ed or  inilalled,  or  how  long  he  continued  in  the 
performance  of  his  covenants. 

Mr.  Rctvt  and  Mr.  Tracy ^  for  the  plaintiffs. 

In  anfwer  to  the  firft  exception,  the  declara- 
tion exprefsly  avers,  that  the  conftitution  of 
church-difcipline,  meant  and  underflood  by  the 
contraQ:ing  parties,  and  which  the  defendant  co- 
venanted not  to  deviate  from,  was  the  Sayhrook-^ 
Platform.  That  is  a  fyflem  of  church-govern- 
ment, which  has  become  a  part  of  the  laws  of 
the  land,  and  therefore  can  need  no  further  de- 
finition. 

2.  This  cannot  be  confidered  as  an  ecclefiaf- 
tical  matter ;  the  contraft  and  covenant  is  whol- 
ly civil,  and  it  is  as  eafy  to  determine,  whether 
the  defendant  has  aQ:ed  in  conformity  to  the 
principles  of  the  church-conftitution,  as  to  de- 
termine any  other  fa6t. 

3.  The  votes  Rated  by  the  plaintiffs,  amoimt 
to  a  dire6l  declaration  of  independance.  It  is 
averred  that  the  defendant  procured  the  churchy 
to  pafs  thofe  votes  which  contain  a  fyftem  total- 
ly repugnant  to  the  Sayhrook^ Platform.  The 
a6livity  of  the  defendant  to  procure  thofe  votes, 
is  a  fmgle  a6l  alledged  againft  him  capable  of 
being  traverfed.  And  it  is  further  averred  that 
he  immediately  went  on,  and  has  ever  fmce 
praftifed  on  thofe  principles. 

4.  The 


County  of  Litchfield^  August  Term. 


97 


4.  The  breach  of  the  covenant  muft  have  re-     "^^"fi" 
ference  to   the  making  of  it.     The  inftant  the     =.i==x;^ 
Covenant  v/as  compleated,  they  became  bound      South- 
to  pay  him  fo  much  money,  he  became  their  mi-      Farms 
nifter,  and  was  obliged  to  praQice  by  the  rules  «  ^S^^"^-^ 
and  principles  pointed  out  hy  the   contraQ:ing     ^*^"'^^'^'^ 
parties.     Any  deviation  from  thofe  rules^  after 
that,  Y/as  a  breach  of  the  covenant. 

By  the  whole  court—- The  declaration  is 
infufficient. — Becaufc,  ift,  The  rule  of  dama« 
ges  is  uncertain. — The  claim  is,  that  the  defend- 
ant (hould  repay,  as  a  forfeiture,  a  part  of  his 
fettlement,  proportioned  to  the  time  from  his 
inftallation,  to  a  certain  fubfequent  period,  when 
he  is  fuppofed  to  have  broken  his  covenant ; 
but  when  his  inftallation  took  place,  doth  not 
appear  from  the  declaration. 

2.  It  doth  not  appear  that  the  covenant  hath 
been  broken. — The  covenant  wa§,  on  the  part 
of  the  defendant,  that  he  iliould  be  the  mmifter 
of  faid  churchy  as  then  eftabliflied,  (which  is  faid 
to  have  been  upon. the  Saybrook^Platform)  and 
*' not  vary  or  go  off  from  laid  eftabliiliment, 
without  a  major  part  of  the  church  and  fociety,*" 
They  might,  if  they  faw  fit,  releafe  him  or  ai-  ■ 
ter  their  eflablifhment ;  but  otherwufe  he  was 
bound  by  this  covenant  to  continue  their  minif- 
ter,  and  to  conform  to  the  rules  and  difcipline  of 
faid  churchy  as  then  pradiced  and  eftabliflied, 
under  certain  penalties.  This  was  the  extent 
of  his  covenant;  and  of  this,  it  doth  not  appear 
that  he  has,  in  any  point  failed.  It  was  no 
breach,  on  his  part,  that  the  churchy  for  whofe 
condud  he  had  not  ftipulated,  and  w^hofe  pro- 
ceedings he  had  not  power  to  dired  or  ne- 
gate, paffed  certain  votes,  and  declared  certain 
clanns  of  the  confociated  churches  in  Litchjidd 
countyy  unfcriptural.  How  far  thofe  claims  were  . 
warranted  by  the  Saybrcok-Platforviy  or  how 
N  ■  far 


9^^ 

South- 
Farms 
againji 
Bccksvith, 


County  OF  Litchfield,  August  Term. 

far  the  cAitrc^,  by  declaring  againft  them,  has 
affeQed  its  conftitution,  is  not  nnaterial ;  fince 
it  doth  not  appear  that  the  defendant  has  ever 
refufed  to  fubmit  to,  or  adminifter  difcipline  in 
faid  churchy  or  to  perform  the  other  duties 
of  a.paflor  thereof^  according  to  the  rules  e- 
ftabliflied  and  praQiced  therein,  at  the  time  of 
his  fettiement.  The  averment,  that  ever  fmce 
the  aforefaid  declaration,  he  has  practiced  a- 
greeably  thereto,  is  too  general.  It  is  not  tra- 
verfable.  Nor  can  it  appear  to  the  court,  un- 
lefs  the  fafts,  or  fome  of  them,  are  fpecially  fet 
forth,  that  the  conduB:  of  the  defendant,  has  a- 
mounted  to  a  breach  of  his  covenant. 


Church  againji  Thomson. 


tmle  led 
le !  h  r  into 
faddles  and 
harntfs,  is 
held,  by 
three  judges 
againit   vo, 
no'  to  be 
Tyithirtthe 
jfta  u.c,  re- 
gu  ai.ng 


the  flatutc 
—By  the 


INFORMATION  qui  tain,  on 
for  working  unfcalcd  leather.- 
ftatute,  it  is  enabled,  "  That  no  perfon  or  per- 
"  fons  whatfoever  Ihall  caufe  or  fuffcr  any  lea- 
^'  ther  by  him  or  them  tanned,  to  be  wrought 
"  up  by  any  flioemaker,  employed  either  by 
"  himfelf,  or  by  any  other  perfon  or  perfons 
"  for  him  ;  nor  fhall  he  work  up  the  fame  him- 
**  felf,  before  fuch  leather  be  viewed  and  fealed, 
**  as  aforefaid,  on  penalty  of  forfeiting  the  fum 
•'  of  Jive  founds  for  every  hide  or  fkin  fo  as 
**  aforefaid  by  him  or  them  wrought,  caufed 
*'  or  fuffered  to  be  wrought  up,  before  fealing 
*'  as  aforefaid/' 

The  defendant  was  a  tanner,  and  had  worked 
unfealed  leather  into  faddles  and  harnefs  :  It 
was  not  clearly  proved  that  he  had  worked,  any 
into  flioes,  though  the  circumftances  rendered 
it  verv  probable. 

The 


County  of  LitchfielDj  August  Term.  99 

The  jury  found  averdiB:  for  the  plaintiff,  ^"^"5^ 
on  which  th^  Court  delivered  the  following  =;2==^ 
opinions  : — -  Church 

L  A w.  Chief  Jujlkcy  Sherman  and  Ells-  againji 
WORTH, — Suppofed  that  claufe  of  the  ftatute  Tl^o^^fo"* 
to  have  reference  to  fhoes  and  boots  only  ; 
and  that  it  could  not  be  extended  beyond  the 
letter,  fo  as  to  include  faddles  and  harnefs ; 
it  being  a  penal  ftatute,  ought  to  be  conftrued 
ilri8:Iy,  otherwife  it  might  operate  as  a  fnare 
to  mankind. 

Dyer  and  Pitkin,— faid  they  confidered 
the  law  to  be  every  where  pointedly  againft  ma=- 
nufa61uring  or  vending  bad  leather :  That  the 
great  objed  of  the  ftatute  is  to  prevent  that 
public  injury.  The  working  of  bad  leather 
into  faddles  and  other  wares,  is  as  exprefsly 
within  the  mifchief  the  law  intended  to  pre- 
vent, as  the  working  of  it  into  flioes  ;  therefore 
within  the  fpirit  and  meaning.  Nam  qui  hceret 
in  litera,  hccret  in  cortic'C. 


N2  Cl^ 


lOO 


County  of  Fairfield,  August  Term. 


1786. 


When  num- 
bers are 
jjoined  in  a 
fuit  ;  dcpo- 
iitionscAH- 
Uot  be  im- 
proved a- 
gainft  fuch 
of  them  as 
a  e not  no- 
tified of  che 
taking  ;  but 
each  p '  fon 
iMuft  have 
noice  ;  if 
within  :hc 
diftauce, 
the  ft^mtc 
prefcribes. 


Clap  againjl  Lock  wood  and  Others. 

THIS  was  an  allien  of  trover  againft  feve- 
rai  defendants.- — Mr.  Davenporty  for  the 
plaintiff,  offered  to  read  a  depofition  taken  out 
of  court ;  but  it  appeared  that  one  of  the  de- 
fendants was  neither  notified  or  prefent  at  the 
taking  thereof,  although  he  lived  widiin.  four 
miles  of  the  place  of  caption.     And, 

By  the  Court, — It  was  rejcBed,  as  it  re- 
fpeBed  the  defendant  not  notified ;  becaufe 
the  defendants  have  a  right  to  plead  feverally, 
and  they  may  have  different  defences ;  and  the 
queilions  put  by  thofe  who  were  prefent  may 
be  inapplicable  to  the  defence  of  the  one  not 
prefent,  and  he  might  thereby  be  defeated  o£. 
the  benefit  of  crofs^examinationo 


A  Judge  of 
Probate 
ought  not  to 
tc]cQt  an  in- 
vencory, 
that  contains 
piopertyj 
the  title  to 
which  is  dif- 
puted :  for 
h,s  dec  ifi©n 
c  innot  aff.ft 
the  !  igh:  of 
trying  the  ti- 
tle topi  oper- 
ty,  at  com- 
mon law. 


Stephen  Gold. — Appeal  from  Prolate. 

MR.  BenediH  and  Mr.  Whittlefey,  for  the 
appellant,  affigned  the  following  reafons 
for  their  appeal : — That  the  appellant  is  one  of 
the  heirs  of  Hezekiah  Burr,  deceafed  j  and  that 
faid  Burry  in  his  life-time,  was  well  feized  and 
poffeffed,  in  his  own  right  in  fee  fimpky  of  a 
certain  tra6l  of  land,  lying  in  Reading,  in  the 
county  of  Fairfield,  containing  about  one  hun- 
dred and  fixty  acres,  bounded,  &c.  and  con- 
tinued thereof  fo  feized  until  his  death,  which 
happened,  &c.  Upon  the  deceafe  of  faid  Burr^ 
the  faid  eftate  defcended  to  the  appellant, 
Sarah  Jackfon  and  others,  heirs  of  the  faid  de^ 
ceafed,  and  they  became  thereof  feized  in  fee. 
At  a.  court  of  probate,  held  at  Danbury,  &c. 

the 


cafe. 


County  of  Fairfield,  August  Term.  loi 

the  appellant  was  duly  appointed  adminiftrator  ^"1^86^ 
on  the  eftate  of  faid  Burr,  he  having  died  in-  ===== 
teftate.  And  at  a  court  of  probate,  held  at  Gold's 
faid  Danbury,  on  the  13th  day  of  January, 
A.  D.  1786,  an  inventory,  made  in  due  form 
of  law,  was  by  the  appellant  exhibited  to  faid 
court;  and  the  appellant,  on  fuch  exhibition, 
did  pray  faid  court  to  admit  proper  proof  of 
the  fame,  and  on  fuch  proof,  to  approve  and 
record  faid  inventory ;  and  the  faid  court  did 
refufe  to  admit  proof  of  faid  inventory,  and  did 
difapprove  thereof. 

Mr.  Ingerfol  and  Mr.  Rowland  replied,— 
That  faid  appeal  ought  to  be  difmiffed  ;  be- 
caufe  all  faid  lands  mentioned  and  contained 
in  faid  inventory,  were  by  the  inteftate,  during 
his  life,  granted  and  conveyed  to  the  appellees, 
by  deed  of  bargain  and  /ale,  figned,  fealed, 
delivered,  and  duly  acknowledged  before  pro- 
per authority,  dated  the  7th  day  of  February, 
A.  D.  1780,  and  during  the  life  of  the  intef- 
tate was  recorded  according  to  law ;  by  force 
whereof  fajd  appellees  became  feized  in  fee  of 
ail  faid  land;  and  being  fo  feized,  ftill  conti- 
nue to  be  fo  feized  thereof:  And  that,  at  the 
time  of  the  death  of  faid  Hezekiah  BiCrr^  he 
was  not  feized  or  pofieifed  in  fee  of' faid  iand^ 
and  had  not  any  intereft  therein  -  wherefore^ 
the  fame  could  not  be  inventoried  as  his  ellate : 
And  that  the  appellees  were,  by  the  Judge  of 
Probate,  duly  notified  to  appear,  and  flicw 
rcafon  why  faid  inventory  fhould  not  be  ac- 
cepted: And  faid  appellees  appeared  before 
faid  Judge,  and  claimed  faid  land,  at  the  fame 
time  faid  inventory  was  produced  and  offered 
for  acceptance  ;  and  on  exhibiting  faid  dttd^ 
and  reading  the  fame  to  laid  Judge  of  Probate, 
he  refufed  to  approve  of  faid  inventory,  and 
did  difapprove  thereof. 

The 


102  County  or  Fairfixld,  August  Term. 

^786~         '^^^^  appellant  rejoined,  that  the  inteftate, 
•.=^=4===^     at  the  time  of  executing  faid  deed,   was  of  un- 
Gold's     foand  mind,  and  incapable  of  making  any  con- 
^^^^'       trad;  and  therefore  faid  deed  is  void  in  law: 
And  the  appellant,  at  the  tiine  of  exhibiting 
faid  inventory,  offered  to  prove  to  faid  court, 
that  the  iiiteftate,  at  the  time  of  executing  and 
delivering  faid  deed,  was  of  unfound  mind  and 
memory,  and  for  want  of  underftanding,  inca- 
pable of  making  any  contrad  or  bargain  ;  and 
the  faid  Judge  refufed  to  admit  any  fuch  proof. 
To  this,  there  was  a  demurrer,  and  joinder 
in  demurrer. 

The  exception  was,  that  the  court  of  pro- 
bate ought  not  to  accept  or  approve  of  an  in- 
ventory, when  it  appears  upon  record,  that  the 
real  eftate  fo  inventoried  is  claimed,  and  the 
title  veiled  in  fome  other  perfon.  The  admi- 
nillrator  had  fully  difcharged  his  duty,  when 
he  exhibited  his  inventory  to  the  court  of  pro- 
bate ;  and  whether  accepted  or  refufed,  the 
adminiftrator  cannot  afterwards  be  liable. 
Mr.   BenediB   and    Mr.  Whittlefey,    on  the 

other  fide. The  adminiftrator  being  under 

oath  to  a  faithful  difcharge  of  his  duty,  is  fup- 
pofed  to  know  what  is  the  proper  eftate  of  the 
deceafed  to  be  inventoried.  The  doings  of 
the  court  of  probate  cannot  affed  the  title ; 
therefore,  no  one  is  injured  by  having  eftate 
inventoried  which  he  may  claim.  The  admi- 
niftrator ought  to  be  careful  to  inventory  the 
whole  eftate  of  the  inteftate,  for  his  own  fc- 
curity  againft  the  creditors,  and  to  fave  his 
bond,  as  well  as  to  prevent  the  heirs  (if  any) 
from  recovering  judgement  in  their  own  right, 
of  the  eftate,  and  thereby  exclude  it  from  the 
hands  of  the  adminiftrator. 

The  decree  of  the  court  of  probate  reverfed. 
And, 

By  THfi  WHOLE  Court. It  was  the 

duty 


GouNTY  OF  FairfielDj  Aucsust  Term.  103 

duty  of  the  adminiftrator  to  exhibit   an  in«    ^Ts^ 
ventory  of  all  the  eftate,   real  and  perfonal,     sss^^^ss 
that  he  had  reafon  to  fuppofe  belonged  to  the      Gold's 
inteftate :    And  if  any  part  of  faid  eftate  is        cafe. 
claimed  by  any  other  perfon,  the  parties  have 
right   to  try    the   title  at    common   law,    and 
cannot  be  concluded  by  the  judgement  of  a 
court  of  probate.     In  cafe  the  eftate  belonged 
to  the   inteftate,  the   adminiftrator   could  not 
profecute  his  claim,  or  apply  the  property  for 
the  payment  of  debts  (if  neceffary)  until  it  was 
inventoried.     To  inventory  the  eftate  here  ob- 
je6led  to,  might  be  neceffary  for  the  admini- 
ftrator, to  comply  with  his  duty  and  truft,  and 
could  be  prejudicial  to  no  one  elfe ;  the  inven- 
tory he  offered,  ought  therefore  to  have  been 
received,    and  the  court  of  probate  erred  in 
rejecting  it. 


Coo  LEY  againft  San  ford. 

ACTION  on  mutual  promifes  (to  wit)  That 
if  the  plaintiff  acquired  a  good  title  to 
certain  lands,  which  he  had  attached  as  the 
property  of  one  Guyer,  and  fliould  make  a 
good  conveyance  of  faid  lands  in  fee  fimple  to 
the  defendant,  then  the  defendant  engaged  to 
become  obligated  to  the  plaintiff  in  the  fiim  of 
209/.  payable  in  a  reafonable  time;  which 
agreement  was  in  writing,  v/ith  a  penal  claufe. 
The  cafe  was,  that  the  plaintiff  ferved  his 
writ  of  attachment  upon  the  land  mentioned^ 
on  the  15th  day  of  May,  1783,  in  the  after- 
noon ;  and  on  the  22d,  in  the  forenoon,  a  copy 
was  left  with  the  town-clerk,  which  was  not 

atteftcd 


104  County  of  Fairfield,  August  Term. 

i«g57     atteiled  to  be  a  true  copy  ;  and  there  were  fe- 

. ~=^     veral  variations  between  that  and  the  one  left 

Cooley     in  fervice,  and  alfo  between  the  return  on  that 

againfi      ^nd  on  the  original  writ :     The  boundary  on 

^"  ^^  '     one^fide  was  defcribed  in  a  different  manner.    • 

After  the  fervice  of  this  attachment  on  the 

lands,  and  before  the  copy  v/as  left  with  the 

town-clerk,  the  defendant,    Sanfordy    knowing 

thereof,    purchafed    the    land  of   GuycTy    the 

debtor,  and  received  a  deed  of  bargain  and 

fale,' dated  the   21ft   day  of  May,   1783,  and 

.recorded  the  fame  day. 

On  the  11th  day  of  Auguft,  1783,  the  agree- 
ment-was made  ^between  the  plaintiff  and  de- 
fendant. The  plaintiff  afterwards  recovered 
iudgement  againfl  Guycr^  had  execution,  and 
levied  on  the  land  in  legal  form.  The  plain- 
tiff then  tendered  to  the  defendant  an  ample 
deed  of  the  land,  and  demanded  the  obligation 
for  209/.  but  the  defendant  refufed. 

This  aQion  being  brought,  and  iffue  joined 
to  the  court,  the  only  queftion  was,  whether 
Cooky y  under  all  the  circumflances,  had  ac- 
quired a  good  title  to  the  land,  fo  as  to  be  able 
to  convey,  agreeably  to  the  tenor  of  the  agree- 
rinent. 

Mr.  BenediB  and  Mr.  Ingerfoly  for  the  vde- 
fendant. — There  ought  to  have  been  the  fame 
kind  of  atteftation  to  the  copy  left  with  the 
town-clerk,  as  to  the  copy  left  with  the  party 
in  fervice  ;  and  if  not  the  fame  literal  exaftnejs 
throughout,  yet  there  ought  to  be  the  moft  cri- 
tical exaftnefs  in  the  deicription  of  the  lands 
taken,  otherwife  they  are  not  identified,  and 
;the  copy  fo  left  can  anfwer  no  purpofe  but  to 
miflead  :  In  the  prefent  cafe,  there  being  no 
^ittefted  copy  left  with  the  town-clerk,  and  the 
pretended  copy  fo  left,  being  ellentially  vari- 
ant from  the  original,  and  from  the  one  left  in 

ferviie 


Sanford. 


County  of  Fairfield^  August  Term.  105 

fervice  with  the  party,  it  could  create  no  lien  ^^35^ 
on  tne  land ;  therefore,  the  fubfequent  pur-  ====: 
chafe  by  Sanford  has  given  him  an  ample  title.      Cooley 

•  Mr.  Chancey  and  Mr.  Silli7nani  for  the  plain-  ^^^J"-^ 
tiff. — The  law  requires  no  more  than  a  certi- 
ficate, or  defcription  of  the  eftate  taken,  to  be 
left  with  the  town-clerk.  The  words  of  the 
ftatute  are,  **  When  any  real  eftate  is  taken, 
"  the  officer  ferving  the  writ  Ihall  leave  a  true 
"  and  attefted  copy  thereof,  and  a  defcription 
*'  of  the  eftate  taken,  at  the  town-clerk's  office, 
"  in  the  town  where  the  eftate  lies  ;  and  until 
"  the  fervice  is  completed,  the  eftate  fo  at- 
"  tached  ffiall  not  be  held  by  fuch  attachment, 
"  againft  any  other  creditor  or  bona-jide  pur- 
**  chafer."  The  obje6l  of  the  law  can  be  no 
more  than  to  give  notice  to  the  world  of  the 
lien  that  is  on  the  land:  This  purpofe  was  ful- 
ly anfwered  in  the  prefent  cafe,  by  the  copy 
that  was  left ;  and  the  land  was  fo  far  defcribed, 
that  no  miftake  could  have  happened  in  regard 
to  it ;  the  officer,  therefore,  has  fubftantially 
performed  his  fervice. 

The  deed  from  Guyer  to  Sanford,  was  ob- 
tained under  fuch  circumftances,  that  the  tranf- 
aQion  contains  in  it  a  fraud :  Sanford  was  ac- 
quainted with  the  circumftances  ;  he  undoubt- 
edly defigned  to  defeat  Cooley  of  his  hold  upon 
the  land ;  he  therefore  took  it  in  his  own 
wrong,  which  cannot  legally  operate  to  his  be- 
nefit. 

Judgement  was  rendered  for  the  plaintiff. 


The 


.06 


County  of  Fairfield,  August  Term, 


1786. 


Thefupenor  TNFORMATION  for  perjitjy.—Mr.  i>- 
t°ke  cogni-  -*-  porty  of  counfel  for  the  prifoner,  ohy 


iance  of  the 
crime   of 
pe  ju  y  and 
foigcry. 


The  State  againjl  Samuel  Lockwood,  3^. 

Daven- 
jelled 
to  the  jurifditlion :  He  urged,  that  the  court 
of  common  pleas  is  the  only  court  which  by 
law  can  take  cognizance  of  the  crime  of  per~ 
jury  :  That  by  high  crimes  and  mifdemeanors, 
mentioned  in  the  ftatute,  is  intended  only  liich 
high  offences  as  have  no  exprefs  punifhment  by 
law  annexed  ;  and  as  the  ftatute  has  afcertained 
the  punifhment  for  perjury,  which  does  not 
extend  to  life,  limb,  or  baniftiment,  it  cannot 
be  cognizable  by  the  fuperior  court. 

Jitdge  Ellsworth  obferved.  That  in  a  cafe 
of  forgery  at  Windham,  the  fame  exception 
was  taken,  and  over-ruled  by  the  court :   And, 

The  Court  held,  that  they  might  take  cog- 
nizance of  the  crime  of  perjury. 


Ademnrrer 
to  adcclnra- 
tion,  con- 
taining a  re- 
cital of  th» 
obligat'oii 
on  which  the 
fuitis  found- 
ed, is  ill,  for 
any  allega- 
tion of  vari- 
ance ;  the 
adva>"tai»e 
should  be 
taken  by 
abaterrenr 
'on  oyer,   or 
demur,  er  to 
evidence. 


Dauchy  againjl  Smith  «^ni  Olmsted. 

THIS  was  an  adion  of  debt  on  bond  ;   the 
declaration  in  common  form. 
Mr.  /n^er/t)/ prayed  oyer  of  the  bond,  which 
he  recited  at  large  in  his  plea,  and  concluded 
by  demurring  to  the  declaration; 

The  bond  appeared  to  have  been  taken  to 
the  plaintiff,  in  the  capacity  of  conJlaUe  of  the 
town  of  Ridgefield.  It  was  conditioned  that 
Smithy  one  of  the  obligors,  (liould  appear  be- 
fore the  court  of  common  pleas,  at  Fairfield, 
on  the  third  Tuefday  of  April,  1784,  anfwer 
to  an  action,  in  favour  of  James  Sturges,  againd 

him 


Smith,  &c. 


County  of  Fairfield,  August  Term.  107 

him,  plead  in  cuftody  of  the  court,  and  not     ^^{^^^ 
depart  without  licence.  =1==:= 

Mr.  Ingerfol  took  two  exceptions  under  the     Dauchy 
demurrer:—  ,«^^M 

1.  That  the  bond  being  taken  by  an  officer 
in  his  official  capacity,  the  condition  ought  to 
have  been  exprefled  in  the  declaration  ;  for 
otherwife  it  does  not  appear  but  that  it  was 
taken  for  eafe  and  favour,  v/hich  would  be  il- 
legal. Although  it  does  not  appear  upon  the 
face  of  the  declaration  that  the  bond  was  taken 
to  an  officer,  yet,  by  inferting  it  in  the  plea, 
the  whole  becomes  parcel  of  the  record ;  and 
the  advantage  may  in  this  manner  be  as  well 
taken  under  a  demurrer  as  by  pleading  a  vari- 
ance. 

2.  The  condition  of  the  bond  is  unw;arrant- 
able :  For  it  is,  that  Smith  fhall  appear  and 
plead  in  cuftody:  That  he  fliall  fufferimprifon- 
ment  at  all  events;  which  defeats  the  very  de« 
iign  of  bail. 

By  the  whole  Court.  For  ought  that 

appears  from  the  declaration,  a  good  and  fuffi- 
cient  bond  is  declared  upon,  and  well  defcribed ; 
and  if  the  defendants  would  avail  themfelves  of 
any  variance  between  the  bond  declared  upon 
and  that  Ihown  upon  oyer,  they  fhould  have 
taken  advantage  of  it  by  plea  in  abatement,  or 
demurrer  to  the  evidence ;  the  declaration, 
therefore,  adjudged  fufficient. 

Note, — This  adjudication  is  oppojed  to  the  Eng- 
Ufa  praEtice~vide  2.  Wilfon's  Reports,  339^ 
Turner  vs,  Vaughan. 


O  2  No?^thrcp- 


o8 


County  ojr  New-Haven,  August  Term, 


1786. 


IF  a  Jnftice 
cf  Peace 
docs  n   t 

cer  ify  in  a 
bi  idJng  o- 
ver  for  a  fe- 
cr  tafT.nilt,      '*  \ 
th;tthc 
comply  n- 
airt  showed 
hs  -wounds, 
and  mnde 
each  to  the 
fafts,  it  is 
mit  crot 
abitemen--, 
andi;otde- 
XTiurrabie. 
Ad  if  r\ro 
petfons  af- 
Tiuic  ano- 
ther, nowit- 
jkTs  being 
yrefent,  both 
m  ly  be  join- 
ed in  the 
compUinc 
foi  a  pri- 
ratc  aflaulc. 


Northrop  againjl  Brush  and  Isaacs. 

THIS  was  an  a6lion  on  the  ftatute  againft 
fecr^t  aflaults,  wherein  it  is  enafted, — 
"  That  if  any  perfon  fhall  break  the  peace,  by 
fecretly  aflkulting,  beating,  maiming,  wound- 
ing, or  hurting  another,  the  perfon  fo  af- 
"  faulted  and  injured,  making  application  and 
**  complaining  to  the  next  affiftant  or  juftice  of 
*^  the  peace,  fhowing  him  what  hurt  or  wounds 
"  he  has  received  thereby;  fuch  affiftant  or  juf- 
"  tice  fhall  forthwith  grant  out  a  writ  to  the  Ihe- 
"  riff  of  the  county,  or  his  deputy,  or  conftable 
*'  of  the  town  where  fuch  affault  fhall  be  made, 
"  commanding  them,  or  either  of  them,  to 
"  arreft  and  bring  before  him  fuch  perfon  fo 
"  affaulting,  to  anfwer  fuch  complaint ;  who, 
*'  upon  oath  being  made  againfl  him  of  fuch 
"  affault,  and  of  the  wounds  or  bruifes  there- 
"  by  received  by  the  perfon  fo  alfaulted  and 
"  beaten,  fliall  be  bound  in  a  fufficient  bond, 
**  &c.'' 

The  complaint  was,  that  the  defendant, 
Brujhy  invited  Northrop  to  the  coffee-houfe,  in 
New-Haven,  into  a  private  room,  under  the 
pretence  of  bufmefs,  and  did  there  affault  the 
plaintiff  with  loaded  piftols.  Sec.  That  the 
other  defendant,  IJaacSy  came  into  the  room, 
and  did  combine  with  Bru/Ji ;  and  that  they 
did  further  affault  and  beat  the  plaintiff,  no 
other  perfon  being  prefent. 

The  juftice  who  bound  over  the  defendants 
did  not  certify  that  the  plaintiff  was  admitted 
to  his  oath,  or  had  difcovered  his  wounds. 

And  under  a  general  demurrer  two  excep- 
tions were  taken  ; 

1.  That  it  did  not  appear  from  the  procefs 
that  the  plaintiff  ever  charged  the  defendants 

under 


County  of  New-Haven,  August  Term.  109 

under  oath,  with  the  fa8;s  complained  of,  or  '"^^^^ 
that  he  fhewed  his  wounds  to  the  juftice,  which  ==^= 
the  ftatute  makes  neceffary  to  fupport  this  kind    Northrop 

of  aaion.  -''^((!'C 

2.  That  the  afTault  complained  of  was  not  ^^"^^j^^- 
in  its  nature  fuch  as  is  intended  by  the  ftatute ; 
it  was  committed  in  a  public  place,  and  by  a 
plurality  of  perfons  ;   the  plaintiff,  therefore, 
may  have  his  remedy  at  common  law :    But, 

By  the  whole  Court, — The  complaint  is 
fufficient.  As  to  the  firft  exception,  that  the 
complainant  did  not  fhow  his  wounds,  and 
make  oath  before  the  juftice  ;  fuch  oath  and 
exhibition  were  proper  evidence  for  the  juftice 
to  proceed  upon,  and  the  prefumption  is,  they 
were  had,  unlefs  there  was  an  admiffion  of  the 
fa6ts  to  render  them  unneceflary  :  It  was  not 
neceffary  for  the  juftice  to  fet  forth  the  e.i- 
dence  he  proceeded  upon ;  or  if  it  was,  his  o- 
miffion  to  do  it  fliould  have  been  pleaded  in 
abatement.  The  demurrer  goes  not  to  the 
certainty  or  regularity  of  the  procefs,  but  to 
the  fufficiency  of  the  complaint. 

As  to  the  fecond  exception,  that  it  was  not 
a  fecret  aflault,  becaufe  committed  by  two  per- 
fons :  Two  ^perfons  may  comm.it  an  afiault 
jointly ;  and  if  it  is  out  of  the  prefence  or  view 
of  others,  it  is  a  fecret  aftault ;  and  althougli 
the  perfon  aflaulted  may  proceed  againft  one 
of  them  in  a  common  a6lion  of  trefpafs,  and 
take  the  other  for  a  witnefs,  yet  he  is  not 
obliged  to  purfue  that  method  :  One  of  them 
alone  may  be  infufficient  to  repair  the  damages; 
and  it  may  alfo  be  unfafe  for  him  to  reft  on 
the  teftimony  of  a  perfon  whofe  malignity  had 
induced  him  to  join  in  a  fecret  attack  upon  his 
perfon  ;  and  it  is  for  the  public  peace  and 
fafety,  that  both  the  aflailants  fnould  be  com- 
plained of,  that  they  may  be  punifhed  crimi- 
nal lie  r. 


no  County  of  New-Haven,  August  Term* 

""1786?  naliter.     This  affault,    though    ms^de   by  two 

■ —  •  ^-^  perfons,  is  within  the  ftatute  againft  fecret  af- 

Northrop  fault. 

^^^"f  Note. — This  judgement  was  afterwards  affirm^' 

'      *  ed  in  the  Jupreme  court  of  errors. 


In  nn  &6t\on 
forfdlfe  im- 
pr  fo-  ment 
the  defen- 
dant uiftifies 
Uftde  •  ihe 
author  ty  of 
an  inf-eriv  r 
cou  r.     Ke- 
pi >  cation, 
th.it  the 
ccui-rhad  no 
jurifdjdion, 
adjudged in- 
lufficicnt ; 
becaufe  the 
•\v.int  of  ju- 
rifHiftion 
docs  not  ap- 
pear upon 
the  face  of 
the  procefs, 
^K  d,  it  is  teo 
l?.!e  CO  shew 
it  by  ma-.ttr 
dehors  the 

TCCO'd. 


WoosTER  agairi/l  FAKioi^s, 

THIS  was  an  a8;ion  of  trefpafs  for  falfe  im- 
prifonment. — The  defendant  pleaded  that 
he  inftituted  a  fuit  againft  the  plaintiff,  on  a 
promiffory  note,  before  the  city  court,  in  the 
city  of  Middletown,  and  obtained  judgement 
thereon,  by  default :  That  execution  was  duly 
granted  upon  faid  judgement,  by  virtue  of 
which  the  plaintiff  was  taken  and  imprifoned  ; 
which  is  the  fame  and  only  imprifonment  com- 
plained of. 

Replication-. — That  faid  note  was  given,  ex- 
ecuted and  delivered  without  the  city  of  Mid- 
dletown :  That  the  caufe  of  a6lion,  which  was 
the  foundation  of  faid  judgement,  did  not  arife 
within  the  ifmits  of  faid  city ;  therefore,  faid 
court  had  not  jurifdiftion  of  faid  caufe,  and 
ought  not  to  have  rendered  judgement  and  if- 
fued  execution  thereon. 

On  demurrer  to  this  replication,  judgement 
was  rendered  for  the  defendant,  by  the  whole 
court : — And  by 

Dyer,  Sherman  and  Pitkin,  Judges, — 
The  plaintiff's  reply  is  infufficient;  becaufe  it 
is  not  therein  alledged,'thatthe  defendant  knew 
that  the  caufe  of  action  arofe  out  of  the  jurif- 
di6lion  of  the  city  court :  For  if  the  plaintiff,  in 
the  a6lion  before  the  city  court,  had  averred  in 

his 


County  of  New-Haven,  August  Term.  iii' 

his  declaration,  that  the  caufe  of  a£lion  arofe     "^Tgg^ 
within  the  jurifdiftion  of  the  court,  when  he     ===== 
knew  it  did  not;  it  would,  as  to  him,  have  been     Vocoder 
a  procefs  unduly  obtained,  and  aftion  of  falfe      ^S^^'^fi 
imprifonment  would  lie  againft  him,    though       ^^o^®* 
not  againft  the  officer  (Lilly's  Ahrid,  695  J  If 
it  had  appeared  on  the  face  of  the  procefs  that 
the  caufe  of  adion  did  arife  out  of  the  jurif- 
di6iion  of  the  city  court,  all  the  proceedings 
would  have  been  coram  nofi  judice^  and  void, 
and  could  have  been  no  juftification  or  ex- 
cufe  for  any  thing  done  under  them;  nor  would 
any  negle6i:  to  plead  it,  or  any  conceffion  of  the 
parties  make  it  good.     2.  Modern  Reports^  29, 

In  the  prefent  cafe  it  was  not  alledged,  that 
the  caufe  of  aftion  did  arife  within  the  jurif- 
diftion  of  the  city  court,  and  for  that  and 
other  reafons,  the  judgement  has  been  re- 
verfed ;  *  but  the  prefent  defendant  might  have  *  Atite  27, 
been  ignorant,  or  miftaken  as  to  the  place 
where  the  caufe  of  action  did  arife  ;  and  in 
that  cafe  he  would  not  be  liable  to  this  a8;ion. 
2.  Wilfon's  Reports^  from  302  to  308. 

Law,  Chief  JvjiicCy  and  Ellsworth^  3^^S^' 
—The  defendant  juftifies  under  an  execution 
from  a  city  court :  The  reply  is,  that  the  caufe 
of  action  arofe  without  the  jurifdidion  of  that 
court;  but  this  doth  not  appear  from  the  face  of 
the  proceedings,  and  it  is  now  too  late  to  fhew 
it  by  matter  dehors  the  record.  The  plaintiff 
in  that  aftion  might  be  ignorant  of  the  fa6l:,  or 
the  matter  in  its  nature  doubtful;  and  if  the  de- 
fendant would  fuffer  the  procefs  to  go  on,  and 
not  plead  the  matter  in  abatement,  he  fhould  be 
confidered  as  having  waved  the  matter  of  jurif- 
dittion  entirely,  and  not  allowed  afterwards  to 
drav7  it  in  queftion  by  an  a6lion  of  falfe  im- 
priibnment.  And  fo  was^  Trufcotc's  cafe^  1,  'Ld, 
Raymond^  229,  in  which  the  former  decifions 
were  brought  up,  and  this  point  fettled. 


ti%  County  o?  New-Havek,  Auou&t  Tbrm. 

"1.7867 

===:  SUPFREIN  aud  CoLEY  agahljl  TkII^  QLE. 

Diftina:ion  'TPHIS  a6i:ion  was  brought  upon  the  follow- 
vheieitis  A  ing  Written  promife  (viz.)  **  This  ba- 
the defend-  *'  lance  of  44/.  45.  is  agreed  to  be  paid  in  good 
ant  to  give  "  Weft-India  rum,  delivered  in  New-Haven, 
ehe^piaintifF  ^'  ^s  foou  as  I  havc  any  come  to  hand ;  or  if 
*^^»^«  ^e-  "  none  ihould  come,  to  procure  it  at  the  cur- 
^^"  '  "  rent  market   price,  and  deliver  it  to  John 

"  Suffrein  or  Williayn  Coleyy  or  order.  Mr. 
'*  Helmns  or  capt.  Sloan  to  judge  of  the  quality 
"  and  price  of  the  rum." 

It  M^as  averred  in  the  declaration,  that  the 
defendant,  on  the  firft  day  of  January  1783, 
had  good  Weft-India  rum  come  to  hand,  fuffi- 
cient  to  pay  faid  fum,  but  had  not  paid  it. 

The  defendant  pleaded,  that  he  did  not  re- 
ceive any  rum  until  the  10th  day  of  February 
1783,  and  then  only  forty-nine  gallons,  which 
he  delivered  to  the  plaintiffs,  together  with  fome 
other  articles,  to  the  amount  of  32/.  75.  which 
they  received  in  part  payment  of  faid  fum  of 
44/.  45. — That  the  refidue  of  faid  rum  did  not 
come  to  hand  before  the  15th  day  of  Auguft, 
1783,  at  which  time,  and  at  all  times  fmce, 
he  hath  ftood  ready  to  deliver  faid  rum  to  the 
plaintiffs,  or  their  order,  in  New-Haven ;  and 
■  that  he  could  not  find  the  plaintiffs,  or  any 
perfon  by  them  authorifed  to  receive  faid  rum, 
'■  to  whom  he  could  make  legal  tender;  and  that 
the  plaintiffs  had  never  demanded  the  fame  : 
And  concluded  by  traverfmg,  that  on  the  firft 
day  of  January,  1783,  the  defendant  had  good 
^Weft-India  rum  come  to  hand  fufficient  to 
pay  faid  debt. 

To  this  there  was  a  demurrer,  and  judge- 
ment for  the  plaintiffs  :     For, 

By  the  whole  Court. — The  plea  amounts 
only  to  a  traverfe  of  the  defendant's  having 

rum 


County  of  New-Haven,  AueusT  Term*  iig 

rum  come  to  hand  in  January,  1783,  fufficient     ^^g^ 
to  pay  the  debt,  which  is  an  immaterial  faft ;     ^^^^^ 
if  his  own  did  not  feafonably  arrive,  he  was,    SuAV^Isi, 
by  the  terms  of  the  contract,  to  procure  other        ^^; 
rum  :  So  that  the  plea  u  ill,  and  judgement    ff^^k^ 
muO:  be  for  the  plaintiffs,-  if  the  declaration  is 
good:    To  which  only  it  is  obje filed,  that  the 
plaintiffs  alledged  no  demand  1  but  thi§  ¥/as 
not  neccffary  1  they  had  right  of  aSion  with- 
out any  demand,  after  waiting  a  reafonabic 
time  for  the   defendant's  rum.    to    arrive^    or 
other  rum  to  be  procured^  and  not  being  no- 
tified that  it  was  ready  1   it  was  the  defendant's 
duty  to  give  notices  and  there  was  no  lien  oh 
the  plaintiffs  to  make  demand. 


Burrows  againjl  Fitch. 

THIS  aftion  was  againft  the  fheriff  of  New- 
Haven  county,  for  the  nedcft.  of  his  de-  a^^i;««» 
puty  ni  not  levying  and  returning  an  execution  againft  a 
which  iffued  on  a  judgement  of  the  fuperior  s'lcnfFfor^ 
court,  holden  in  the  county  of  Fairfield     The  ini^snexc- 
aBion  was  upon  the  ftatute  regulating  Oieriffs,  f^'''fj."^"u^ 
in  which  it  is  enaQed,  *^  That  if  fach  Iheriff  or  fuperior 
''  conftable  fhall  not  execute  the  writ,   or  fliali  be"bfou% 
*^  negleSi  to  make  return  thereof^  or  ihall  make  in^fnycmm- 
"^  falfe  or  undue  return  1   on  complaint  thereof /JJ^pasV'" 
**  made  to  the  court  or  juiiice  to  v/liick  it  was  <iweiis,whe- 
'^  made  returnable,  the  court  or  juftice  may  ginaijitige-" 
•*  enquire  thereof,  by  the  evidence  produced,  "^^"^  ^f 
**  and  if  he  be  found  in  default,  the  court  or  there  or  nm 
"juftice  may  fet  a  fuitable  line  upon  him,   and 
"  award  damages  to  the  party  aggrieved." 

On  demurrer,  judgement  was  for  the  plain- 
tiff. And, 

P  By 


fitch. 


114  County  of  New-Haven,  August  Term. 

^   gT"         By   the  whole    Court. — The   only   ex- 
z=zL^z=L     ception  to  the  declaration  is,  that  the  ftatute 
Burrows     on  which  this  a6lion   is  brought  requires  fhat 
og'^itjfi^     the  complaint  ffiould  be  made  to  the  lame  court 
that  granted  the  execution  on  which,  &c.  and 
therefore  this  aBion  fhould  have  been  brought 
in  the   county   of  Fairfield,    and   not   in   the 
county  of  New-Haven,     The  court  is  of  opi- 
nion, that   this  court  is  the  fame  within    the 
meaning  of  the  ftatute,  fitting  in  any  county  in 
the  ftate  ;  and  therefore  fuch   aftion  may  be 
maintained  in  the  county  where  either  party 
dwells.     The  declaration  is  therefore  fufficient* 


WiLFORD  <7?tJ  O^A^ri  ^^<:z/n/?  Grant. 

ja'gemcnt     T)ETER  GRANT,    and  Eleanor  his  wife, 
levetfcd  In  .J/     brought    their  a6lian    of  trefpafs  againft 
^^^  "    *      ■  Jofcph  Wilfordy   Ifaac  Smith,  John  Black/lone^ 
zdy  Timothy  BlackJlonCy    Noadiah  Roger Sy    and 
Samuel  Hoadley,  jun.  for  an  affault  and  battery 
committed  upon  faid  Eleanor.     At  the  time  of 
trial,  Wilford  and  the  two  Blackjlones  made  de- 
^    fault.     The   other    defendants    appeared    and 
I  pleaded  the  general  iifue,-  on  which  the  jury 
-found  a  verdid  for  the  plaintiffs,  and  75/.  da- 
mages; and  judgement  was  rendered  againft 
.  all  the  defendants. 

The  defendants  then  brought  this  wTit  of 
error  de  recordo  quod  coram  nobis  rejidety  aflign- 
ing  the  following  errors  in  fa6l : 

.1.  That  Timothy  and  John  Blackflone  were, 

at  the  time  of  bringing  the  fuit,  and  at  the  time: 

.  of  rendering  judgement,  minors  under  the  age 

of  twenty-one  years,  and  totally  incapable  of 

appearing, 


CouNTT  OF  New-Haven,  August  Term*  115 

appearing,  anfwering  or  defending  in  faid  fuit     "^^^^ 
in  any  other  way  than  by  guardians  ;  and  that     ====c 
the  plaintiffs  did  not  cite  any  perfon  to  appear    Wilford, 
as  guardian  to  faid  minors,  nor  was  any  perfon        &c. 
ever  appointed  by  the  court.  Grant. 

2.  That  the  court  did  proceed  to  render  one 
entire  judgement  againfl  all  the  defendants  in 
faid  fuit  for  entire  damages ;  whereas  faid  Tj- 
piothy  and  John  have  never  had  a  day  in  court, 
or  an  opportunity  to  put  in  any  plea,  or  to  be 
heard  on  faid  matters;  and  no  damages  ought 
to  have  been  given  or  affeffed  againft  them. 

The  defendant  in  error  pleaded  in  abatemcrt 
to  the  writ ;  that  faid  judgement  was  recovered 
againft  the  plaintiffs,  in  error  for  a  trefpafs 
committed  on  faid  Eleanor^  who  has  fmce  d^- 
ceafed,  fhe  then  being  wife  of  the  defendant  in 
error;  therefore,  the  prefent  defendant  cannot 
be  confidered  as  party  or  privy  to  faid  aftion, 
fo  as  to  be  heard  on  the  merits  thereof,  if  faid 
judgement  fhould  be  reverfed ;  and  that  exe^ 
xution  hath  been  taken  out  on  faid  judgement, 
and  duly  levied  on  land>  and  faid  lands  duly 
appraifed  and  fet  off. 

The  plaintiffs  in  error  replied,— That  there 
is  not  any  executor  or  adminifirator  of  the 
faid  Eleanor  deceafed ;  but  that  the  faid  Eleanor 
left  fundry  heirs,  each  of  whom  are  minors  un- 
der the  age  of  twenty-one  years ;  and  that  the 
defendant  in  error  is  the  father  and  natural 
guardian  to  each  and  every  of  the  heirs  of  the 
faid  deceafed,  and  has  been  duly  fummoned 
and  notified  to  appear  and  defend  in  this  cafe. 

The  replication  was  adjudged  fufhcient,  and 
the  aOiion  ordered  to  proceed ;  and  then  on  the 
plea,  in  nullo  eji  erratum'^  judgement  was  re- 
verfed in  part  only. 

By  the  whole  Court* — The  judgement 

complained  of  is  againft  minors  and  adults,  as 

P2  joint 


ii6  County  of  N£W-Haven,  August  Term. 

^^^  joint  trefpafTers ;  minors  are  prcfumed  wanting 
s="^==  in  difcretion  to  manage  their  own  caufes,  or  to 
V/ilford,  appoint  and  inftrutt  attornics ;  guardians  arc 
^^'  therefore  to  be  affigned,  w^ho  fhall  take  care  for 
^i^"^J}  them,  and  be  accountable :  In  this  cafe  none 
were  affigned,  and  judgement  went  againft  the 
minors  by  default,  through  the  negled  of  the 
then  plaintiff  to  inform  the  court  of  their  mi- 
nority, which  he  ought  to  have  done  before  he 
took  judgement  againft  them  by  default  or  oth- 
erwife.  -Sut  the  principal  queftion  is,  can  the 
judgement  be  reverfed  as  to  them,  and  ftand  good 
againft  the  reft  ?  No  reafon  appears  rcrum  nat^ 
ura,  why  it  fhould  be  reverfed  as  to  the  adults 
alfo  :  They  were  fairly  tried  and  convi8:ed,  and 
they  might  have  been  taken  alone  at  firft,  or  the 
plaintiff  might  have  entered  a  nolle prcfequi  as  to 
the  others;  and  as  this  recovery  was  for  a  tort> 
no  contribution  could  have  been  compelled,  if 
one  had  been  obliged  to  pay  the  contents  of 
the  execution.  If  a  judgement  muft  be  re- 
verfed as  to  all,  merely  to  give  relief  to  one 
who  may  be  entitled  to  it,  there  will  be  unne- 
ceffary  expcnce  and  delay  of  jufticc,  and  in 
cafes  circumftanced  like  the  prefent,  a  failure 
of  it :  For  the  right  of  action  beiijg  merely 
perfonal,  and  the  original  plaintiff  dead,  the 
action  cannot  be  comimenced  again  de  novo, — 
The  common  law  rules  of  England  are  indeed 
againft  a  reverfal  in  part  only,  in  a  cafe  like 
this,  though  it  is  admitted  in  others  without 
any  apparent  diverfity  of  reafon  :  As  if  an  in- 
fant and  one  of  full  age  join  in  a  fine,  there 
fiiall  be  a  reverfal  quoad  the  infant  only  ;  fo 
where  judgement  is  erroneous  only  with  regard 
to  cofts,  it  may  be  reverfed  as  to  them,  and 
ftand  good  as  to  the  debt  or  damages ;  but  it 
doth  not  appear  that  this  rule  has  been  adopt- 
ed in  pradicc  here>  fo  as  to  become  authorita- 
tive. 


County  of  New-Haven,  August  Term.  117 

tive.     The  common  law  of  England  we  are  to     ^^^^ 
pay  great  deference  to,  as  being  a  general  fyf-     - — ~~ 
tem  of  improved  reafon,    and  a  fource  from    Wilford, 
whence  our  principles  of  jurifprudence  have        ^^• 
been  moftly  drawn :  The  rule,  however,  which     ^"^^^^ 
have  not  been  made  our  own  by  adoption,  we 
are  to  examine,  and  fo  far  vary  from  them  as 
they  may  appear  contrary  to  reafon  or  unadapt- 
ed  to  our  local  circumftances,  the  policy  of  our 
law,  or  fimplicity  of  our  practice ;  which,  for 
the  reafons  above  fuggefted,  we  do  in  this  cafe, 
and  reverfc  the  judgment  as  to  the  minors  only. 

This  judgement  was  afterwards  affirmed  in  the 
fapreme  coi^rt  of  errors. 


^V^E  L  L  E  S 


ii8 


County  or  Hartford,  Sept.  Term* 


1786. 


Welles  & 
his  wife 

againfi 

Olcoct. 


Welles  ^ni  hi%  Wife  againjl  Olcott^. 

ACTION  of  diffeifin.— On  fpecial  plead- 
ings  the  cafe  was — ^That  John  Knowks, 
by  his  laft  will,  dated  the  30th  day  of  Novem- 
ber, 1753,  among  other  things,  devifcd  the 
lands  in  queflion  to  his  "  daughter  Mary 
"  KnowleSy  and  the  heirs  of  her  body  forever." 
Mary  Knowks  was  married  in  June,  1762,  to 
Alexander  Chalkery  and  had  iiTue  a  daughter, 
Bridget  (wife  of  the  plaintiff)  born  September, 
1764.  The  faid  Mary  having  heirs  born  of 
her  body,  did  alien  the  lands  on  the  6th  day 
of  June,  1765,  by  a  deed  of  bargain  and  fale, 
executed  by  herfelf  and  hufband;  and  by  feve- 
ral  mefne  conveyances  it  came  regularly  to  the 
defendant. 

On  demurrer, — It  was  contended  that  this 
was  a  limited  eftate,  and  no  more  than  a  life 
cftate  in  Mary  Knowks;  therefore  fhe  could 
not  alien  the  fee,  but  that  it  defcended  to 
Bridget  Chalker,  the  plaintiff's  wife. 

On  the  other  fide  it  was  urged,  that  this  de- 
vife  created  a  conditional  fee,  and  that  the 
condition  was  performed  when  Maiy  had  mar- 
ried and  had  heirs  of  her  body ;  and  that  the 
cflate  then  vefled  in  her,  as  a  fee  fimple  ;  That 
the  Englifh  flatute  of  Wejlminfier,  2d,  i^th 
Edward  1.  entitled  the  Statute  de  donis  Gondii 
tionalibus,  did  never  extend  to  this  country, 
and  hath  never  been  adopted  here  ;  therefore, 
fuch  tenures  ought  not  to  be  conftrued  to  be 
eftates  tail  in  this  flate. 

By  the  Court. — Uniformity  of  decilion  is 
to  be  preferved.  The  point  in  this  cafe  hath 
been  twice  recently  adjudged,  in  the  cafes  of 
AlUn  vs.  Bunce,  and  Devey  vs.  Foot ;  and  on 

the 


CouisTY  OF  Hartford,  Sept.  Term.  119 

the  following  principles:    That  the  intent  of    ^^5^ 
the  teftator  was  to  be  purfued,  where  it  did  not     ===^== 
interfere  with  the  policy  of  law :    That  the  in-    Welles  & 
tent  in  the  prefent  cafe  obvioufly  was  to  create     ^^^  ^^^^ 
an  eftate  tail,  and  not  a  conditional  fee.     A  li-     ^cotu 
mitation  in  tail,  fo  far  as  related  to  the  (irft 
donee  in  tail,  might  be  for  very  good  reafons ; 
and  it  does  not  interfere  with  the  policy  of  law, 
like  perpetuities,  or  more  than  any  life  eftate : 
And  that  the  late  ftatute,  admitting  limitations 
in  tail,  as  relative  to  the   firft  donee,  might 
well   be  coniidered  as   in   affirmance  of    the 
common  law.     Judgement  was  therefore  for 
the  plaintiffs. 

N.  B.  Judge  Pitkin  excufed  himjdf  from 
judging  in  this  cafe,  being  related  to  one  of  the 
parties. 


KiBBE  agaiTiJi  Kibbe. 

THIS  was  an  adion  of  debt,  on  a  judgement 
rendered  by  the  court  of  common  pleas  in 
the  county  of  Berkfliire,  and  commonwealth 
of  Maflachufetts. 

The  defendant  pleaded  in  abatement,  "  That 
*'  at  the  time  of  bringing  the  a8ion  to  the  court 
**  of  common  pleas,  upon  which  the  judgement 
*•  referred  to  in  the  plaintiff's  declaration  was 
"  rendered,  he,  the  defendant,  was  an  inhabi- 
"  tant  of  the  town  of  Somers,  in  the  county 
'*  of  Hartford  ;  and  that  the  plaintiff,  in  faid 
"  original  aQion,  prayed  out  a  certain  pretend- 
"  ed  writ  againfl  the  defendant,  in  the  words 
'*  following,  to  zuit : 

''  Berkfhirc 


120 

Kibbee 

againfi 

Kihbce. 


County  or  Hartford,  Sept.  Term* 

''  Berkfhire,  ff. 
**  The  commonwealth  of  Maflachufctts, 
^^  To  James  Kibbcy  of  Somers,  in  the  county 

"  of   Hartford,   and   ftate   of    Connecticut, 

*'  hufbandman,  Greeting : 

*^  W  E  command  you  that  you  appear  at  our 
*V  next  court  of  common  pleas,  to  be  holden  at 
*'  Great-Barrington,  within  and  for  our  faid 
"  county  of  Berkfhire,  on  the  third  Tuefday 
"  of  November  next ;  then  and  there  to  an- 
"  fwer  unto  Stephen  Kihbcy  of  Loudon,  in  the 
*'  county  aforcfaid,  yeoman,  in  a  plea  of  co- 
"  venant  broken,  which  is  at  large  fet  forth  in 
"  the  original  writ ;  which  plea  the  faid  Stephen 
*^  hath  commenced  againflyou,  to  be  heard  and 
"  tried  at  the  faid  court ;  and  your  goods  and 
"  eftate  arc  attached,  to  the  value  of  two  hun- 
"  dred  pounds,  being  for  fecurity  to  fatisfy  the 
*' judgement  Vt'hich  the  faid  Stephen  may  reco- 
^^  vcr  upon  the  aforefaid  trial.  Fail  not  of  ap- 
"  pearance,-at  your  peril.  Witnefs,  Willi- 
"  AM  Whiting,  Efq.  at  Great-Barrington, 
"  the  28th  day  of  06lober,  in  the  year  of  our 
"  Lord  1784. 

"Henry  Wms.  Dwight,  Clerk.** 

That  the  plaintiff  having  prayed  out  faid  pre- 
tended writ,  he  caufed  the  fame  to  be  left,  or 
a  copy  thereof,  at  the  dwelling-houfe  of  him, 
the  defendant,  in  faid  Somers,  by  fome  perfon 
unknown -to  the  defendant:  That  the  aforefaid 
•writ,  or  copy  thereof,  was  the  only  notice  or 
fummon  ever  given  or  made  to  the  defendant,' 
to  appear  and  anfwer ;  and  faid  judgement  was 
proceeded  to,  and  rendered  againft  the  defen- 
dant, upon  the  ground  and  authority  of  faid 
writ,  iffued  and  left  at  the  defendant's  houfe,  in 
faid  Somers,  as  aforcfaid,  and  in  no  other  way 
or  manner  whatever. 

Whereupon 


County  of  Hartfoed,  Sept.  Term.  isi 

Whereupon  the  defendant  fays.  That  he  had     ""7^867 
not  legal  notice,  nor  had  faid  court  of  common     ==-=^= 
pleas  any  authority  to  iifue  any  procefs  againil     K^bbec 
the  defendant,  or  proceed  to  render  judgement    £[^^"-^ 
thereon,  upon  fuch  pretended  writ,  left  at  the 
defendant's  houfe,  in  faid  Somers,  as  aforefaid ; 
nor  was  the  defendant  holden  by  lav/  to  make 
any  anfwer  thereto j  and  faid  judgement  is  ill 
founded  and  void,  and  no  fait  or  a8:ion  can  or 
ought  to  be  maintained  thereon  ;  all  which  the 
defendant  is  ready  to  verifyj  Sec, 

The  plaintiff  replied,  That  he  brought  his 
a6lion  againft  the  defendant  before  faid  court 
of  common  pleas,  iu  the  words  following,  to 
wit : 

''  Berkfhire  ff. 

*'  Commonwealth  of  Maifachufetts, 
**  To  the  fheriff  of  our  county  of  BerkiliirCj 

*^  his  under  ftieriff  or  deputy,  Greeting :  " 

"WE  command  you  to  attach  the  goods  or 
*'  eftate  of  James  Kihbee,  of  Somers,  in  the 
**  county  of  Hartford,  and  ftate  of  Connedi- 
**  cut,  hufbandman,  to  the  value  of  200/. — and 
*^  for  want  thereof  take  the  body  of  the  faid 
"  James,  if  he  may  be  found  in  your  precinQi 
"  and  him  fafely  keep,  fo  that  you  have  him 
**  before  our  juftices  of  our  court  of  common 
"  pleas,  next  to  be  holden  at  Great-Barring* 
**  ton,  within  and  for  our  faid  county  of  Berk- 
"  fhire,  on  the  third  Tuefday  of  November 
"  next ;  then  and  there  in  our  faid  court  to  an- 
"  fwer  to  Stephen  Kibbee,  of  Loudon,  in  our  . 
*^  faid  county,  yeoman,  in  a  plea  of  covenant 
**  broken ;  and  v/hereupon  the  faid  Stephen 
"  complains  for  this  (to  wit:)  That  whereas  the 
"  faid  James,  at  Somers  aforefaid  (to  wit)  at 
"  Great-Barrington  aforefaid,  on  the  23d  day 
**  of  February,  in  the  year  of  our  Lord,  1763^ 
**  by  his  deed  pole,  the  date  whereof  was  the 
Q     *  .    -     "daj 


.Kibbee, 


22  County  of  Hartford^  Sept.  Term. 

T786^  "day  and  year  laft  aforefaid;  which  deed  was 
=rL:r=  "  well  executed  by  the  faid  JameSy  fealed  with 
Kibbee  '"  his  Teal,  ready  in  court  to  be  produced,  for 
ng^^j^fl  "  and  in  coi  ^deration  of  the  fum  of  64/.  law- 
"  fui  money,  by  the  faid  Siephen  well  and  tru- 
"  ly  paid  to  the  faid  JamcSy  did  give,  grant, 
"  fell,  and  confirm  to  the  faid  Stephen^  his  heirs 
*'  and  afiigns  forever,  a  certain  piece  or  lot  of 
**  land,  lying  and  being  in  Tyringha.m,  in  our 
**  faid  county  of  Berkfliire,  containing  feventy 
*^  acres,  be  the  fame  more  -or  iefs,  which  was 
^*  laid  out  on  Samuel  Levcmore's  right,  and  is 
•*  number  194,  ar:d  bounds,  &c.  Alfo,  one 
^*  other  tra^l  or  lot  of  land,  in  faid  Tyringham, 
"  containing  iixty-two  and  an  half  acres,  be 
*'  the  fam.e  more  or  Iefs,  w^hich  was  laid  out  on 
*^  V/iUiam  White's  right,  and  is  number  142. 
"  Alfo,  a  right  in  place  of  commonancy,  which 
*'  is  known  by  the  name  of  the  Equivalent  Land. 
"  Said  right  did  belong  to  Samuel  Levemore,  a- 
"  forefaid,  and  faid  lots  were  not  then  laid  out. 
**  To  have  and  to  hold  to  the  faid  Stephen^  his 
"  heirs  and  afligns  forever:  And  the  faid  James 
"  by  his  deed  aforefaid,  did  covenant  with  faid 
"  Siephen,  his  heirs  and  affigns,  that  at  and  un- 
"  til  the  enfealing  thereof,  he  was  well  feized 
'*  of  the  premifcs,  as  a  good  indefeafible  cftate 
"  in  fee  hmple  ;  and  that  he  had  good  right 
*'  and  lawful  authority  to  bargain  and  fell  the 
"  fame  in#nanner  and  form  aforefaid  ;  and  that 
**  the  fame  were  free  and  clear  of  all  incum- 
brances whatever.  And  furthermore,  the 
faid  James  did  then  and  there,  by  his  deed 
"  aforefaid,  covenant  with  the  faid  Stephen,  his 
"  heirs  and  affigns,  to  warrant  and  defend  the 
"  above  granted  premifes  to  him  the  faid 
"  Stepherty  his  heirs  and  afiigns,  againft  all 
"  claims  and  demands  whatever.  And  now 
"  the   faid  Siephen  in  fad  fays,  that  the  land 

**  aforefaid 


M 


Kibbee, 


County  of  Hartfor©,  Sept.  Term.  123 

**  aforefaid  was  under  incumbrances,  and  that     "^Tg^ 

''  the  faid  James  hath  not  Y/arranted,    fe cured     ==l^~ 

"  and  defended  the  abovefaid  premifes  to  him     Kibbee 

"  the  faid  Stepheiiy  againft  all  claims  and  de-      ^gainji 

*^  mands  whatever :  And   the  faid  Jamcs^  his 

"  covenants     aforefaid    hath    not    kept,     but 

*'  broken   to  the  damage  of   the  faid    Stephen 

"  (as  he  faith)  the  fum  of  200/. — which  fh all 

"  then  and  there  be  made  to  appear,  with  other 

"  due  damages.     And  have  you  there  this  writ, 

^[  with  your  doings  therein.      Witnefs,  Willi- 

"  AM    Whiting,    Efq.    at    Great-Barmngton, 

"  this  28th  day  of  October,  in  the  year  of  our 

''  Lord,   1784. 

''  H.  W.  D.  Clerk.'' 

Which  faid  writ  was  duly  ferved  on  the  de- 
fendant, by  Solomon  Jackfon^  iheriff's  deputy 
for  faid  county  of  Berkfhire,  and  by  him  duly 
returned   to  faid  court,  with  his  indorfement 

thereon,  in  the  words  following,  viz.- 

'^  Berkfhire  {f.  October  29,  1784:  Then,  by 
**  virtue  of  the  within  writ,  I  attached  a  band- 
"  kerchief,  fhewn  to  me  by  the  plaintiff's  at- 
"  torney,  to  be  the  eftate  of  the  within  named 
"  James  Kibbee ;  and  have  feafonably  fent  him 
"  a  fummon,  for  his  appearance  at  the  time  and 
**  place  within  mentioned,  as  the  lav/  di reels." 

That  the  faid  fherift's  deputy,  agreeable  to 
his  faid  indorfement,  fent  to  the  defendant  faid 
fummon,  mentioned  and  recited  in  the  defen- 
dant's plea,  by  the  hands  of  Nathaniel  Wood, 
of  Loudon,  in  faid  Berkiliire  county,  and 
Afahd  Adams y  of  Suffield,  in  faid  Hartford 
county,  who  left  the  fame  with  the  defendant, 
and  duly  made  oath  to  the  fam.e  before  Elipha-^ 
let  Terry y  Efq.  Juilice  of  the  Peace  for  Hart- 
ford county,  who  made  a  certificate  thereof, 

in  thefe  words,  viz. '*  Hartford  county  {{, 

"  Enfield,  November  2d.  1784;  perlbnaiiy  ap- 
Q  2  ''  p^red 


124  County  of  Hartford,  Sept.  Term. 

T^"86~~"     "  pearcd  Nathaniel  Woody    of  Loudon,  in  the 

^    .-^     «  county  of  Berkfhire,  and  commonwealth  of 

Kibbe      "  Maffachufetts,  and  Afahel  Adams,  of  Suffield, 

axmf!^     "  in  faid  Hartford  county,  and  made  folcmn 

Kibbe,      u  Q2i\hy  that  they  have  this  day  left  a  fummon 

**  at  the   dwelling-houfe  of  James  Kibbee,   of 

*'  Somcrs,  in  faid  Hartford  county,  for  his  ap- 

**  pearance  at  the  court  of  common  pleas,  at 

"  Great-Barrington,  in  and  for  the  county  of 

**  Berkihire,  in  faid  commonwealth  of  MafiTa- 

*^  chufetts,  on  the  third  Tuefday  of  November 

/'inftr.nt;  then  and  there  to  make  anfwer  to 

'*  Stephen  Kibbee,  of  faid  Loudon,  in  a  plea  of 

"  covenant  broken." Which  writ,  with  the 

faid  deputy  flieriff's  indorfement  thereon,  and 
with  faid  certificate  made  by  faid  Eliphalet  Ter~ 
rjy  Efq.  were  duly  returned  to  faid  court  of 
common  pleas,  for  faid  county  of  Berkfliire, 
and  faid  court  thereupon  proceeded  to  render 
judgement  in  faid  aftion,  in  the  words  follov/- 
ing,  viz. 

**  Berkfhire  ^, — At  a  court  of  common  pleas, 
'*  begun  and  holden  at  Great-Barrington,  with- 
"  in  and  for  the  county  of  Berklliire,  on  the 
'*  third  Tuefday  of  November,  A.  D.  1784. 

"  Stephen  Kibbee,  of  Loudon,  in  the  county 
**  of  Berkfliire,  yeoman,  plaintiff,  again  ft  J^^zwes 
**  Ki-bbee,  of  Somers,  in  the  county  of  Hartford^ 
"  and  ftate  of  Connedicut,  hufbandman,  defen- 
"  dant,  in  a  plea  of  covenant  broken  (recite 
^  ing  the  fuhfiance  of  the  declaration.)  The  faid 
"  Stephen  appears  in  court,  by  his  attorney,, 
*'  Thomas  Ives,  gentleman ;  and  the  faid  James 
**  is  now'  three  times  folemnly  called  to  come 
^  into  court,  but  makes  default  of  appear- 
'  '  *'  ance  here :  Whereupon  it  is  adjudged  and 
''  determined  by  the  court,  that  in  this  cafe  the 
"  laid  Stephen  do  recover  againll  the  faid  James 
**  the  fum  of  147/.  35.   9^.  lawful  money,   da- 


*'  mages. 


Kibbe. 


County  of  Hartford,  Sept.  TePxM,  125 

"  mages,  and  the  cofts  of  fuit,  taxed  at  1/.  105.     "^^157 
"  9^.   And  hereof  the   faid  Stephen  may  have     =^=^=: 

**  his  execution." All  which,   by  the  hies      Kibbe 

and  records  of  faid  court  of  common  pleas,     f/.'l^"-^ 
ready  in  court  to  be  fhewn,  appears ;  and  all 
which  proceedings  aforefaid  were  conformable 
to  the  laws  and  cuftoms  of  the  faid  common- 
wealth of  MaiTachufetts. 

The  defendant  rejomedy   That  faid  writ  v/as 
no  otherwife  ferved  than  by  leaving  faid  copy 
or  paper,  without  any  indorfement  or  return 
thereon  by  any  one  whatever,  or  any  kind  of 
notice   or  intimation  of  attaching   any  eftate 
whatever,    as   in   his  plea  is   alledged :     And 
though  true  it  is  the  faid  JackJoUy  deputy  ilie- 
riif,    made  return  of  his  attaching  a  handker- 
chief,   fhewn  to  him  by  the  plaintiif's  attorney 
to  be  the  eftate  of  the  defendant,  yet  the  de- 
fendant fays  that  he  never  did  in  faft  attach  or 
take  any  of  his  eftate  whatever ;  and  faid  re- 
turn of  faid  officer  is  altogether  falfe  and  feign- 
ed, and  calculated  by  the  plaintiff  and  his  at- 
torney merely  to  procure  and  obtain  the  judge- 
ment aforefaid,  and  of  which  return  and  doings 
of  faid  deputy  fheriff  the  defendant  never  had 
the  leaft  notice,  until  the  bringing  of  this  ac- 
tion ;  and  the  defendant  thereupon  fays,  that 
the  proceedings  aforefaid  are  altogether  illegal, 
and  not  conformable  to  or  warranted  hy  the 
laws  of  this  ftate  or  any  other. 

And  the  plaintiff  jiir-rejoined — That  faid 
paper  left  with  the  defendant  in  fervice,  was  a 
fummon,  iffued  and  figned  by  the  clerk  of  the 
faid  court  of  common  pleas,  for  faid  county  of 
Berkftiire,  for  the  defendant  to  appear  and  an- 
fwer  unto  the  faid  fuit  before  faid  court ;  which 
is  the  ufual  and  common  notice  for  appearance, 
agreeable  to  the  laws,  ufage  and  cuftoms  of  faid 
commonwealth  j  and  that  the  faid  notice,   and 

evidence 


Kibbe. 


126  County  of  Hartford,  Sept.  Term. 

^Tgg"     evidence  thereof,  and  the  whole  of  faid  procefs, 

■• =     was  agreeable  to  faid  laws,  ufages  and  cuftoms. 

Kibbe  To  this  there  w^as  a  demurrer,  and  joinder 

'^■V-H-^     in  demurrer ;  and  judgement  for  the   defen- 
dant. 

By  the  Court. — It  appears  by  the  plead- 
ings, that  the  defendant  was  an  inhabitant  of 
the  ftate  of  Connedicut,  and  was  not  within 
the  jurifdidion  of  the  court  of  common  pleas 
for  the  county  of  Berkfliire,  at  the  time  of  the 
pretended  fervice  of  the  writ ;  therefore,  the 
court  had  no  legal  jurifdiftion  of  the  caufe, 
and  fo  no  aftion  ought  to  be  admitted  on  faid 
judgement :  But  full  credence  ought  to  be 
given  to  judgements  of  the  courts  in  any  of 
the  United  States,  where  both  parties  are  with- 
in the  jurifdiBion  of  fuch  courts  at  the  time  of 
commencing  the  fuit,  and  are  duly  ferved  with 
the  procefs,  and  have  or  might  have  had  a  fair 
trial  of  the  caufe;  all  which,  with  the  original 
caufe  of  action,  ought  to  appear  by  the  plaintiff's 
declaration  in  aftion  of  debt  on  fuch  judgement. 
Judge  Dyer  faid  further, — That  the  origi- 
nal aftion  was  upon  a  covenant  real,  and  lo- 
cally annexed  where  the  lands  lye  ;  and  the 
judgement  being  by  default,  this  court  never 
could  take  cognizance  of  or  examine  into  the 
juftice  of  the  caufe ;  therefore,  cannot  enforce 
the  judgement  on  which  this  atlion  is  brought. 

Note. — Judge  Ellsworth  excufed  himfcJf 
from  giving  an  opinion  in  this  cajcy  having  for^ 
merly  been  of  counfcL 

The  two  preceding  cafes  were  adjudged  the  lajh 
term^ 


Hart 


County  of  Hartford^  Sept.  Term.  127 

Hart  againjl  Smith.  ~ 

THIS  was  a  general  indebitatus  ajfumpfit^  for  A<ai©nof;n.. 
money  had  and  received.  ?i'lm'X"iV^° 

The  cafe,  from  the  pleadings,  was  this:—  nptiufiain- 
The  plaintiff  being  brigadier-general  of  a  bri-  ney^h.dJnd' 
c^ade  of  militia,  and  the  defendant  a  colonel  rtceived^ 
under  his  command,  received  ot  the   plamtift  amiitkeia 
the  fum  of  i/^yS/.   in  bills  of  this  ftate,   to  be  ^^-tie/^^enc, 
apphed  to  puolic  uie,  and  to  account.      On  the  acuu  trance 
4th  day  of  Jan.    1783,   the  defendant  rendered  th^'J^a 
an  account  of  the  application  of  the  monies  fo  rpci^aac- 
received,  and  a  fettlement  was  made  by  the  cx-°pohu- 
parties  ;  the  plaintiff  gave  to  the  defendant  an  ingotfueh 
acquittance  from  all  demands  on  this  account,  hk^mli\l] 
and  the  defendant  delivered  to  the  plaintiff  all 
his  vouchers  and  other  papers  relative  to  the 
matter  :    That  by  means  of  a  double  charge 
and  mifentry,   two  miftakes  had  happened  in 
the  fettlement,   againft  the  plaintiff,  to  the  a- 
mount  of  202/.  145.  6d, 

On    demurrer,  the   queftion  was,    whether 
this  general  a6lion  of  indebitatus  affumpfit,   is 
fuftainable  after  a  fettlement  and  acquittance. 
Judgement  was  for  the  defendant. 

By  Lav/,   Chief  Jiijlice^  Dyer,    Sherman 

and   Pitkin. The  fafts  conceded  by  the 

pleadings,  do  not  fupport  this  adion. — — It  ap- 
pears by  the  pleadings,  that  the  only  money 
received  by  the  defendant  of  the  plaintiff,  was 
a  fum  of  ftate  bills,  which  he  received  as  a  pub- 
lic officer,  to  pay  over  to  the  foldicrs  of  his  re- 
giment, for  which  he  was  accountable  ;  and  if 
he  had  failed  of  performing  his  undertaking, 
the  plaintiff's  legal  and  proper  remedy  would 
have  been  an  action  of  account :  But  the  de- 
fendant having  rendered  his  account  to  the 
plaintiff,   to  his  acceptance,  and  the  fame  hav- 


128  County  of  Hartpord,  Sept.  Term* 

i«g5^     ing  been  fettled  by  their  mutual  agreementj 

" — ^==     and  the  defendant's  vouchers  delivered  up  to 

Hart       the  plaintiff;  the  defendant  relying  wholly  on 

^^a/;.^      the  plaintiff's  acquittance  for  his  fecurity  (as  in 

his  plea  is  alledged)  he  ought  not  to  be  fubjeO:-' 

ed  to  the  plaintilPs  demand  in  this  a8:ion,  upon 

any  fuppofed  miftake  in  the  fettlement,  which 

cannot    be    afcertained    but   by    opening    the 

whole  account  to  a  new  examination  and  fet- 

tlement. 

This  kind  of  aSlion  is  a  beneficial  remedy  in 
many  cafes,  but  ought  not  to  be  extended  fo 
far  as  to  deftroy  the  eficB:  of  all  legal  fettle- 
ments  and  acquintances,  made  by  agreement 
of  the  parties.— If  a  miftake  is  made  in  fettle- 
ment  of  an  account,  which  appears  from  the 
face  of  the  account  itfelf,  a  fpccial  aftiori  of 
the  cafe  pointing  out  fuch  miftake,  may  be 
.  fuftained. 

Judge  Ellsworth,  dijfenting.^ — 
It  appears  from  the  pleadings  in  this  cafe, 
that  the  defendant,  having  received  1578/.  of 
the  plaintiff's  monies,  in  bills,  to  pay  over  and 
account;  afterwards,  viz.  in  January,  1783, 
rendered  his  account  in  writing,  amounting  to 
^  1440/.  85.  4<i.  which  was  allowed,  and  he  gave 

his  note,  payable  to  the  treafurer,  for  the  re- 
maining ballance  of  137/.  iii.  %d,  which  note 
the  plaintiff  receipted  in  writing,  as  the  bal- 
lance due  to  him,  and  gave  up  the  original  re- 
ceipt he  held  againft  the  defendant.  It  is  fur- 
ther ftated  by  the  plaintiff,  and  not  denied  by 
the  defendant,  that  in  faid  fettlement  there  hap- 
pened a  miftake  of  222/.  25.  by  means  of  the 
defendant's  having  tv/icc  charged  an  articie  to 
that  amount,  appearing  from  the  account  itfelf* 
Alfo,  a  further  miftake  of  180/.  125.  6d.  in  fa- 
vour of  the  defendant,  occafioncd  by  a  mifen- 
try  ;  by  which  means  the  defendant  has  retain- 
ed 


Smith, 


County  OF  Hartford,  Sept.  Term.  129 

ed  in  his  hands  202/   145.  6d.  of  the  plaintiff's     "^^35^ 
monies,  without  any  confideration,  and  unjuft-     ===== 
ly.     And  the  quellion  is,   has  the  plaintiff  any       Hart 
remedy  ?  And  if  he  has,  can  he  recover  in  this      ^g^j»J^ 
a6lion  ? 

It  is  an  eflablifhed  principle  of  law,  founded 
in  the  moft  apparent  juflice,  that  an  action  will 
lie  for  money  paid -by  miftake ;  and  it  makes 
no  difference  whether  the  miftake  happens  in 
fettlement  of  an  account,  or  of  any  other  mat- 
ter:  It  is  fufhcient  to  maintain  the  adion,  that 
there  has   been   a   fettlement,    and  a  miftake 
therein,  whereby  the  defendant  has  obtained 
money  of  the  plaintiff,   which  in  confcience  he 
ought  not  to   retain.     The  difficulty    lies,    in 
fliowing  with  clearnefs  and  certainty,  that  the 
miftake  has  happened,  which  in  all  cafes  can- 
not be  done ;  as  where  a  fettlement  is  made  in 
grofs,   without   computation  or  regard  had  to 
particulars ;  fo  where  a  fettlement  is  made  on 
computation,   but  the  evidence  of  the  compu- 
tation is  not  preferved,  and  only  a  receipt  is 
given,  to  lliow  that  a  fettlement  has  been  made. 
But  other  cafes  there  are,  in  which  the  miftakes 
are  clear  and  certain;  as  where  they  have  hap- 
pened by  a  mifcaft,  a  miftaken,   or  double  en- 
try,  and  the  account  or  ftatement  is  preferved 
for  infpedion,  as  in  the  prefent  cafe;  fo  where 
the  miftake  has  happened  by  the  mifconception 
of  a  faft,  which  afterwards  comes  to  light ;  as 
where  a  lofs  has  been  allowed  on  a  policy  of 
infurance,  and  the  veffel  afterwards  fafely  ar- 
rives.     Whenever  the  miftake  is  apparent,  or 
from  the  nature  and  circumftances  of  it  clearly 
demonftrable,    a  remedy  may  and  ought  to  be 
admitted  ;  4ior  v/ill  the  admiilion  of  it  invali- 
date the  fettlement  of  the  parties,   which  may 
ftill  be  left  to  operate,    fo  far  forth  as  the  fame 
was  underftandingly  made.     Rectifying  the  cr- 
R  rors 


.'J  man. 


130  County  of  Hartford,  Sept.  Term. 

T786T  ^'^^'^  ^^  miftakes  of  a  fettlement,  does  not  def- 
:."=:==:  tiov  it,  but  oiily  makcs  it  what  the  parties  de- 
Hart  figned  it  ihould  be  j  and  t-lie  court,  on  the  tri- 
^i^/^J^  al  of  every  fuch  cafe,  will  conliiie  die  plaintiff 
to  lay  his  finger  at  once  upon  the  iniftake,  and 
not  fuffer  him  unnecefTarily  to  ramble  over  the 
fettlement,  nor  to  go  upon  evidence  of  a  loofe 
or  dangerous  kind.  But  it  is  contended,  that 
the  plaintiff  has  barred  himfelf  of  a  recovery 
in  this  cafe,  by  the  receipt  he  paiTed  for  the 
balance  found  due  to  him  upon  account  ren- 
.dered:  This  receipt  is  a  mere  matter  of  evi- 
dence ;  it  proves  (which  is  all  it  was  defigned 
for)  that  there  has  been  an  account  rendered 
by  the  defendant,  and  a  fettlement  had  thereon; 
but  it  docs  not  at  alla{fe8:th-e  queftion,  whether 
the  miftakes  that  have  happened  in  that  fettle- 
ment can  be  re^iified.  It  is  no  argument  that 
the  miftake  cannot,  or  ought  not  to  be  rectifi- 
ed ;  that  there  has  been  a  fettlement,  in  which 
the  miftake  happened.  By  the  fettlement,  in- 
deed, which  has  been  had  in  this  cafe  upon  the 
defendant's  account  rendered,  the  plaintiff's 
original  a6lion  of  account  is  gone;  but  this 
aftion  is  for  a  different  matter;  it  is  for  money 
obtained  in  and  by  that  fettlement  through  mif- 
take, viz.  by  an  over-payment,  or  allow^ance 
there  made  to  the  defendant.  In  corrobora- 
tion of  his  plea  in  bar,  the  defendant  has  aver- 
red, that  at  the  time  of  the  fettlement  he  gave 
up  his  receipts  and  papers;  but  as  the  averment 
■was  not  traverfable,  it  required  no  anf^ver,  and 
is  hot  to  be  taken  p7'o  con/effb.  And  befides, 
the  burden  does  not  lie  upon  the  defendant  to 
make  out  that  the  fettlement  w^as  right,  which 
is  to  be  prefumed,  but  on  the  plaintiff  to  fhow 
a  miftake  ;  and  uniefs  he  produces  all  the  pa- 
pers that  can  have  relation  thereto,  and  clears 
the  point  of  doubt,  he  muft  fail :  And  it  would 

be 


County  of  Hartford,  Sept.  Term.  131 

be  feafonable  for  the  defendant  to  avail  himfelf    "^^yg^T 
of  the  lofs  of  his  papers  when  it  flioald  appear  -  =--===^ 
on  the  trial,  from  the  nature  of  the  miftake  al-       Hart 
ledged,  that  they  could  have  any  relation  to      tS^'i^'i 
iuch  miltake. 

But  admitting  that   neither  this   averment, 
nor  the  receipt  relied  upon,  are  fufficient  to 
bar  the  plaintiff  of  a  remedy;  a  queftion  is  ftill 
made,  whether  he  can  recover  in  this  aftion, 
which    is  a  general    indebitatus   affuTrtpJit^   for 
money  had  and  received  to  the  plaintiff's  ufe  ? 
This   is  a  kind  of  aftion  well  known  in  our 
practice,  as  well  as  in  the  common  law  of  Eng~ 
land;  and  from  the  equity  of  the  principles  on 
which  it  proceeds,  and  the  extenfivenefs  of  the 
remedy  it  gives,  is  highly  favoured.     It  lies 
generally  where  one  has  received  money  be- 
longing to  another,  without  any  valuable  con- 
fideration  on  the  receiver's  part ;    for  the  law 
conftrues  this  to  be  money  had  and  received  to 
the  ufe  of  the  owner  only  ;    it  is  in  nature  of  a 
bill  in  equity,  and  is  applicable  to  almofl  every 
cafe  where  the  defendant  has  received  money, 
which  ex  equo  et  bono^  he  ought  not  ta  retain  °     ; 
and  particularly  where  he  has  obtained  it  by 
impofition  or  miftake  (^  Black/lone' s  Com,  162. 
Cowper^  igjj  as  in  the  prcfent  cafe.    It  is  true, 
indeed,  the  defendant  did  not  in  this  cafe  di~ 
reftly  receive   any  money  when  the  miftake 
happened ;  but  at  a  fettlemcnt  and  payment  of 
his  account  then  rendered,  he  had  an  offset  of 
the  plaintiff's  monies  in  his  hands,  which  is  fub- 
ftanftially  the  fame  thing  as  if  he  had  then  di- 
rectly received  it  from  the  hand  of  the  plaintiff. 
It  is  true  alfo,  that  the  offset  of  payment  he 
then  received  was  not  in  money,  but  in  ftate 
bills ;  but  then  thofe  bills  being  in  nature  of 
money,   this  adion  lies  for  them  as  for  money, 
as  it  doth  alfo  for  bills  of  exchange  and  nego- 
R  2  t  ion  able 


13,2  County  of  Hartford,  Sept.  Tsrm. 

^"786?     tionable    notes    (2   Black/lone* s   Rc^forts,   ^2%. 

==i===  CowpeTy  197.)  So  that  the  defendant  njay  be 
Hart  confidered  as  having  byraift-ake  received  the 
again]}  plaintiff's  monies,  ind  to  the  plaintifPs  ufe  ; 
imith.  ^}iich  is  fufficient  to  maintain  the  aftion.  It 
has,  however,  been  urged,  that  the  plaintiff 
muft  fail  in  this  a8:ion,  becaufe  he  has  not  de*. 
clared  fpecially;  and  that  were  it  admitted 
under  a  general  count  for  money  had  and  re^ 
ceived  to  the  plaintiff's  ufe,^to  give  in  evidence 
the  payment  of  money  by  miff ake,  the  defen- 
dant might  be  furprized  :  But  the  objetlion 
goes  to  exclude  this  kind  of  a8;ion  altogether; 
for  the  count  is  always  thus  general  for  money 
had  and  received  to  the  plahitiff's  ufe ;  and  the 
plaintiff  is  left  to  make  out  his  cafe,  and  fliew 
the  particular  manner  and  circumflances  of  the 
money's  being  had  or  received  upon  the  evi-^ 
dencc.  Nor  is  this  a  more  beneficial  indul^r 
gence  to  the  plaintiff  than  the  defendant  in  this 
kind  of  aftion  has  in  his  defence  :  As  the  trial 
*»  is  on  equitable,  principles,  he  may,  under  the 
general  iffue  of  non  ajfumpfity  difprove  the  fads 
fet  up  by  the  plaintiff,  or  fet  up  other,  and  in- 
dependant  fa.Bs,  to  rebut  the  equity  of  the  plain^ 
tiff's  demand.  Burrow,  1006.  The  generality 
both  of  the  charge  and  defence  are  fuppofed  to 
be  adapted  to  the  nature  and  defign  of  the  ac^ 
tion.. 

As  to  the  furprize  apprehended,  it  can  very, 
feldom  happen  that  a  defendant  will  remain 
unconfcious,  or  unapprized  of  the  ground  the 
plaintiff  means  to  rely  upon,  until  the  final  trial. 
If,  however,  this  at  any  time  does  happen,  and 
the  defendant  is  apparently  furprized,  the  court 
will  relieve  him  by  a  new  trial;  but  they  never 
will  regard  the  poffibility  that  from  the  nature 
of  the  a6lion  there  might  have  been  a. furprize, 
when  it  appears  that  the  defendant  before  final 

trial. 


County  of  Hartford,  Sept.  Term.  133 

trial,  in  fa6l  had  notice.     Cowper,  805.  Doug^     ^Vsl? 
laSy  133.   Longchamp  vs.  Kenney,  ===== 

In  a  late  cafe   of  Waldron  vs.  Halfey^  in  the       Hart 
county  of  New-London,  where  a  recovery  was      «<§^«/«y? 
had  for  money  paid  upon  a  fettlement  under  a        ^^^  * 
general  indebitatus  ajjumpjity  and  a  new  trial  was 
moved  for,  upon  a  fuggeflio7i   (inter  alia)  that 
from  the  generality  of  the  count,  the  defendant 
was  liable  to  be  furprized,  and  was  in  fa8:  fo  ; 
yet  it  appearing  to  the  court  that  he   was  not 
furprized  on  the  final  trial,  but  had  notice  in  the 
court  below,  a  new  trial  was  refufed.     In  this 
cafe  there  was  a  full  difclofare  in  the  court  be^ 
low,  both  by  the  pleadingsand  the  eviden-ce  on 
a  hearing  in  damages.     For  the  reafons-  above 
fuggefted,   it  appears  to  me  that  the  plaintiff  is 
not  barred  of  his  remedy,  and  might  recover 
in  this  a8:ion,  and  fhould  be  admitted  to  a  tri» 
al  of  his  caufe  upon  the  evidence;  and  there-^- 
fore  that  his  replication  is  fufficient. 

N.  B.  This  judgement  -was  afterwards  affirmed, 
inthejupr  erne  court  of  errors. 


Chapman  and  Griggs  againji  Welles, 

THIS  was  an  a6i:ion  of  book-debt  brought  a*,  o'iedion 
by  Chapman  Sind  Griggs,  in  the  capacity  wh!;h  is'lt 
oisiffignecs  of  George  Caldwell,   a  bankrupt.         a  ground  K>f 

The  general  ifTuc  was  pleaded,  and  a  verdlQ:  JSie^g^, 
for  the  defendant.  sh;^n  no-ict 

Mr.  Root  and  Mr.  Larrahee,   counfel  for  the  lUiaT 
plaintiffs,  moved  in  arrefl  of  judgement-    and 
affigned  for  caufe, — That  the  account  on  which 
the  adion  was  founded,  confided  principally  of 
monies  paid  to  the  defendant,  to  have  been  by 

him 


134  County  oi  Hartford,  Sept.  Term. 

^Tg^     him  applied  in  payment  of  fundry  executions, 
=====     which  he,  as  deputy  fiierifF,  had  in  his  hands 
Chapman,    againll  faid  Caldzoell ;  and  that  the  defendant 
^c-        ^i(\  not  apply  thofe  monies  to  the  ule  intended, 
'W^iul     ^^^  Caldwell  difcharged  the  executions  in  ano- 
ther manner,  and  had  received  no  benefit  from 
thofe;  monies  which  creates  the  debt  againft  the 
defendant  in  this  aBion :  That  one  of  the  j  urors 
who  tried  faid  caufe  was  largely  indebted  on 
the  books  of  faid  Caldwell,  for  monies  paid  to 
him  in  the  fame  manner,  during  a  time  in  which 
he  a6ted  as  conftable  of  the  town  of  Hartford ; 
which  account  is  warmly  contefted  by  faid  jz^- 
f'or ;  therefore  faidjWor  was  deeply  intercftcd 
in  the  point  in  queftion,  which  was  a  maitter 
not  known  to  the  plaintiffs  at  the   time  of  the 
trial :     And  alfo,  that  the  jury  were  much  di- 
vided in  their  fentiments,  as  to  the  legality  of 
the  charges  in  the  plaintiffs  account. 
The  motion  in  arreft  over-ruled. 
By  L  A w,  Ch ief  JufticCy  Sherman  a  n  d  P  i  t- 
KIN,  Judges, — On  enquiry,  it  does  not  appear 
that  this  juror  was  any  way  interefted  in  the 
event  of  this  catife,  nor  that  there  is  any  con- 
troverfy  fubfifting  between  him  and  the  plain- 
tiffs refpeding  the  account  found  in  faid  Cold-^ 
well*s  book,  nor  that  any  thing  faid  refpefting 
that  account  had  influence  with  the  jury  in  giv- 
ing their  verdi6l ;  and  the  book  containing  the 
account  referred  to  was  in  the  plaintiffs  hands, 
and  by  them  exhibited  on  the  trial ;  therefore, 
it  muft  be  prefumed  they  knew   the  contents 
of  it ;  and  if  they  had  any  exceptioj:!  to  thejw- 
ror,  they  ought  to  have  challenged  him  before 
the  trial;  but  as  there  appears  no  ground  for  a, 
principal   challenge,  the  obje8.ion  ought  not 
now  to  be  admitted,  to  fet  afide  the  verdi6l. 
jfud^e  Dy£r,  diffenting : — 

For 


County  of  Hartfoud,  Sept.  Term* 

For  though  on  enquiry,  it  did  not  appear 
that  this  juror  was  interefted  in  the  event  of 
the  caufe  then  on  trial,  yet  that  he  was  mate- 
rially interefted  in  the  only  eflentiai  point  in 
queftion,on  which  the  event  of  this  caufe  wholly 
depended:  This  was,  ifaxiebtor,  on  execution, 
fhould  pay  a  fum  of  money  to  the  officer  who 
held  the  execution,  to  be  applied  in  payment 
of  fuch  execution,  and  the  officer  neglecting  to 
apply  or  endorfe  the  fame  on  fuch  execution, 
whether  a  charge  on  book,  or  a  book-debt^  can 
be  maintained  againft  fuch  officer  who  has  ne- 
gleQed  or  refufed  to  apply  the  fame. 

Another  material  point  in  the  caufe  was, 
whether  the  oath  of  a  creditor  is  fufficient  to 
fupport  a  charge  under  all  the  circumftances 
which  occurred  in  this  cafe. 

The  third  point,  whether  Caldwelly  the  credi* 
tor  (and  on  whofe  oath  the  truth  of  the  charge 
much  depended)  was  a  perfon  of  fufficient  cre- 
dit to  fupport  the  fame. 

The  caufe  in  queftion  was  brought  forward 
by  the  plaintiffs,  as  ajfignees  of  Caldwell,  by  a8: 
of  affembly;  and  the  books  have  been  in  their 
hands  for  more  than  twelve  years,  in  which 
they  difcovered  this  charge  for  certain  fums  of 
money  paid  to  Welles,  the  defendant,  then  a  de- 
puty Iheriff,  on-  certain  executions  then  in  his 
hands  againft  Caldwell,  and  is  faid  never  appli- 
ed; but  that  Caldwell  Imth.  fince  been  obliged 
to  pay  the  whole  fums  of  faid  executions :  Said 
fums  before  paid  were  found  by  the  plaintiffs 
charged  on  faid  Caldwell's  book,  when  the  fame 
came  into  their  hands.  The  juror  excepted  a- 
gainft,  by  the  motion  in  arreft,*was  a  deputy  ffie- 
riff  at  the  fame  time  v/ith  the  deFcndant,'  and 
had  fundry  executions  in  his  hands  againft  faid 
Caldwell,  in  the  fame  manner  as  the  defendant; 
and  when  the  jury  retired  for  confidcration,  faid 

Caldzvcll'^ 


Chapman, 
Wellel. 


136  County  of  Hartford,  Sept.  Term, 

"^""35^     Caldwell*s  book  was  delivered  them,   as  evi- 
=:=.=:     dence  of  the    charge   againft  the    defendant. 
Chapman    Welles ;  and  it  appeared  by  fundry  of  the  jury:, 
^^:        that  when  they  had  taken  their  room,  the  juror 
WqUcs'     excepted  againft  fearched  the  book,  in  order 
to  find  whether  faid  Caldwell  had  made « a  like 
charge  againft  him;    and  that  he  foon  found 
faid  Caldwell's  account  againft  himfelf,  charging 
fundry  fums  paid  on  executions  in  the  fame 
manner  as  thofe  charged  againft  the  defendant^ 
and  then  declared  to  the  jury,  that  there  was  no 
^         truth  in  the  charge — he  did  not  believe  a  word 
of  it,    and  that  Caldwcil  had  no  right  to  make 
fuch  charge.     The  jury  feparated  that  evejiing, 
without  much  confultation  upon  the  eaufe,  and 
when  they  came  together  the  next  morning  they  ^ 
found  this  juror  ftill  looking  over  his  account, 
as  the  evening  before  :    On  this,  fome  of  the 
jury  told  him  he  ought  not  to  be  attending  fo 
much  to  his  own  account,  but  to  the  charge 
againft  the  prcfcnt  defendant.  On  which  this  ju- 
ror  made  much  the  fame  declaration  as  the  even- 
ing before,  and  appeared  from  the  beginning, 
ftrongly  oppofed  to  allowing  any  charge  made 
by  faid  Caldwell  againft  Welles,  the  defendant, 
though  feveral  of  the  jury  feemed  to  entertain 
a  favourable  opinion  of  the  whole  ;  but  finally 
brought  in  a  verdiO:  in  favour  of  the  plaintiffs, 
only  for  a  hat  of  about  the  value  of  forty  fhil- 
lings.     They  rejefted  the  whole  charge  of  the 
monies  paid  on  faid  executions,  though  the  de- 
fendant could  not  ihow  any  application  of  faid 
monies  upon  executions  he  ever  had  againft  faid 
Caldwell:  Thtrtf^orey  I  am  fully  of  opinion,  that 
the  idiidju7'o/-  was  deeply  affefted  and  intereft- 
ed  in  the  material  point  in  the  prefent  caufe, 
and  which  would  have  been  a  principal  chal- 
"'^        lenge,  and  a  fufticient  objeQion  againft  him,  if 
it  had  been  known  and  made  before  trial ;  and 

therefore 


County  ofHabtf-ord^  Sept.  Term. 

therefore  the  caufe  was  not  trkd  by  more  than 
eleven  legal  jurors. 

The  obfervations  and  declarations  of  faid  ju- 
ror, on  the  charges  of  a  fimilar  nature  againft 
himfelf,  which  he  declared  to  be  falfe  in  the 
prefence  of  the  jury,  is  highly  probable  to  have 
a  very  conhderable  efFe6l  and  influence  on 
them,  and  was  new  evidence  not  produced  on 
4rial,  by  which  the  plaintiffs  were  deprived  of 
a  fair  and  impartial  trial  of  the  caufe,  and  ought 
by  no-means  to  be  concluded  thereby,  and  the 
Arerdid  ought  ta  be  fet  alide. 

Note. — In  this  cafe  a  motio7i  was  Jiled  for  a 
habeas  corpus,  to  bring  into  courts  under  the  aif- 
tody  of  thejheriff  and  keeper  of  the  goal^  Charles 
Caldwell^  a  debtor,,  then  in  prifon,  that  he  7night 
give  tefimony  in  f aid  aHion,  The  court  granted 
the  motiony  and  ordered  a  habeas  corpus  to  ifjuc 
accordingly. 

J'wd'^e  Ellsworth  excufcd  himfelffromjudg^ 
ing  in  this  cafe. 


Chapman 

&  Griggs 

againji 

Weiies, 


BUN,CE  ^^^ZW/?BUNCE. 

ERROR  from  a  judgement  of  the  court  of 
common  pleas.' The  cafe  was,— The 

plaintiff,  being  adminiftratrix  on  the  eftate  of 
Zachariah  Bunce,  deceafed,  brougnt  her  aftion 
of  the  cafe  againft  the  prefent  defendant ,  declar- 
ing, "  That  about  the  nth  day  of  April,  A.  D. 
"  1768,  the  faid  Zachariah,  being  then  in  full 
"  life,  and  the  faid  Jonathan^  in  and  by  their 
"  certain  bond  or  writing  obligatory,  by  them 
^'  well  executed,  bound  themfelves,  their  heirs, 
S  "  executoi\s 


Afuretymay 
fuflain  an 
aftion  on  the 
ca'e  agai'  ft 
his  p.inci- 
pal,  for  pay- 
menn  oF  r.he 
poper  dobc 
ofthepriii 
cipal. 


Bunce. 


138  County  of  Hartford,  Sett^  Ter^m-. 

"""g^     "  executors  and  adminiftrators,  and  every  of 
rwn-.-zJz     «*  them,  jointly  and  feverally,  unto  John  Chef^^ 
Bunce      **  ter^  Elijlia  WilliamSy  and  Hezekiah  May,  then 
^^(3/»/?     «  all  of  Weathersfield  (who  were  appointed  a 
•*  committee  to  let  out  and  improve  the  monies 
*^  belonging  to  the  fchool  in  the  firft  fociety  in 
**  faid  Weathersfield)  in  the  fum  of  igL  lawful 
**  money,  for  the  purpofe  of  fecuring  to  faid 
*^  committee  twenty-fcven  ounces,  fifteen  pen- 
*'  ny  weight  and  thirteen  grains  of  good  coin- 
**  ed  filver,  Troy  weight,  fterling  alloy,  to  be 
*'  paid  on  or  before  the  25th  day  of  December 
**  next  following  the  date  of  faid  bond :  Which 
**  fum  of  money  kft  mentioned  was  not  paid 
**  on  faid  25th  day  6f  December,  and  remain- 
*'  ed  a  long  time,  together  with  the  intereft 
"  thereoni-iinpaid,  till  on  or  about  the  21ft  day 
^*  of  March,-  1782,  the  faid  Zachariah  paid  to 
*'  Ezekiel  Williams^    John  Chejler,   and  Jofeph 
"  Webhylt^dX  fucceflbrs  to  the  committee  afore- 
"  faid,  the  fum  of  16/.  6s.  5 J.   lawful  money, 
*^  which  faid  fum  v/as  due  for  principal  and  in- 
"  tereft  on  faid  bond.     Now  the  plaintiff  fays, 
**  that  faid  bond  was  given  for  monies  loaned 
"  by  faid  committee  to  and  for  the  ufe  of  faid 
"  Jonathan  only,  and  that  faid  Zachariah  never 
^^  received  any  benefit  from  faid  monies,  but 
"  that  faid  Jonathan  received  and  applied  them 
^'  to  his  own  ufe  and  benefit;    Whereupon  the 
^^  plaintiff  fays,  that  on   the  faid   21ft  day  of 
**  March,  the  faid  fum  of  16/.  6s.  ^d.  lawful 
**  money,  became  juftly  due  from  faid  Jona^ 
"  than  to  faid  Zachariah ;    and  that  faid  Jona- 
"  than  afterwards  (to  wit:)  on  faid  21ft  day  of 
*'  March,    in   confideration    thereof,    affumed 
*'  upon  himfelf,  and  faithfully  promifed  to  pay 
**  the  faid  Zachariah  faid  fum  on  demand;  yet 
"  the  faid  Jonathan,  his  promife  and  undertake 
"  ing  aforefaid  not  regarding,  hath  never  per- 
formed 


County  of  Hartfoed,  Sept.  Term. 

"  formed  the  iamc,  either  to  the  faicl  Zcicha-- 
"  riahy  during  his  life,  or  to  the  plaintiffs  fiiice 
•*  his  deceafe,  &c.*' 

On  demurrer  to  this  declaration,  judgement 
was  for  the  defendant.  And  now,  the  general 
error  being  affigned,  the  judgement  of  the  eourt 
of  common  pleas  was  reverfed  v — For, 

By    the    whole    Court. -There  is 

no  defe8:  in  the  declaration,  to  juftify  the  de- 
cifion  of  the  court  of  common  pleas.  There 
is  alledged  a  promife,  and  a  breach,  and  a 
confideration  fufficient  to  raife  a  promife.  The 
defendant  having  borrowed  and  had  the  money 
for  which  the  bond  was  given,  it  was  his  duty 
to  pay  the  bond ;  and  what  the  faid  Zachariali^ 
his  furety,  paid  upon  it,  he  paid  for  the  ufe  of 
the  defendants  who  became  indebted  to  him  up- 
on fuch  payment;  which  was  a  fufficient  con- 
fideration, or  indebtednefs,  to  raife  the  prc^^ 
mife  laid  in  the  plaintiff's  declaration. 


IQj 


__i_7oo 

Bunce 
ctgainji 
Bunee. 


Fa l m e r  again ji  S e y mo u r .    . 

HIS  was  an  a6lion  on  the  cafe,  againft  the  J"'\«njcf 
dejendant  (who  was  a  jujtice  of  the  Peace)  caifethe,!- 
for  iffuing  a  writ  of  replevin,  without  taking  Ic-  |eJi!,V''IS^" 
gal  and  fufficient  bonds.  -.  docs  not  de- 

The  defendant  pleaded.  That  at  the  time  of  n.e'^isonhe 
granting  the  writ  of  replevin,  one  Preferved  caa^c 
Field  was  recognized  in  due  form  of  law,  to 
profecute  faid  replevin,  who  was  then  an  inha- 
bitant of  Hartford,  a  perfon  in  trade,  and  pof- 
felfed  of  property  in  faid  Hartford,  to  the  a- 
mount  of  the  plaintiff's  demaPxd  in  the  a6iion, 
which  he  had  attached,  and  amply  fufficient  to 
S  a  pay 


140        -       County  OF  Hartford,  Sept.  Term.-- 

"^Tgg^     pay  any  other  demand,  to  the  amount  of  three 
s==4==4     times  that  fum. 
Palmer         On  this  plea,  iffue  was  taken — and  a  verdiO: 
^gainfi     for  the  plaintiff. 

Seymour.        ^qx  the  defendant^  it  was  moved  in  arreft  oP 
judgement ; — 

1.  Becaufe  the  verdi6l  is  founded  on  an  im-^ 
material  ifTue; 

2.  Becaufe  the  plaintiff's  reply  is  a  depar- 
ture from  the  declaration  :  For  the  declaration 
charges  the  defendant  with  taking  no  fecurityj- 
and  the  reply  brings  in  iffue  the  fufficiency  only- 

3.  Becaufe  the  verdi8:  amounts  to  a  nega- 
tive pregnant,  and  implies,  that  faid  Fidd  had  - 
fufficient  property  in  fome  other  place. 

The  judgement  was  arrefted:  Arid, 
By  the  Court, — The  iffue,  as  found  by 
the  verdi6l,  does  not  determine  the  merits  of 
the  caufe.  The  jury  find,  that  Fiild^  who  gave 
bonds  in  the  cafe,  was  not  poffeffed  of  fuffici- 
ent eftate  in  Hartford ;  but  if  he  was  poffeffed 
of  fufficient  eftate  in  any  other  place,  it  w^ould 
have  been  fufficient  to  juftify  the  defendant  in 
taking  his  bonds ;  but,  from  the  verdift,  it  docs 
not  appear  whether  he  had  eftate  elfewhere  or 
not ; — therefore,  a  re-pleader  is  is  ordered. 

■V -•■»■•,) 
Note. — Judge   Ellsworth  excuf&d  hiinfelf 
from  judging  in  this  cafe,  he  having  been  of  coun^ 
fel  in  it  before  his  appointment  of  Judge* 


Ch u Rc K  againjl  the'  Inhabitants  of  the  'Town  xf 
Norwich. 

THIS  was  an  aftion  brought  by  Churchy  in 
the  capacity  of  adminiftrator  on  the  eftate 
of  John  Coleman,  dcceafed,  againft  the  town 

of 


County  of  Hartford,  Sept.  Term,  141 

of  Norwichy  for  the  recovery  of  a  fum  of  money,     "^{T^ 
paid  by  the  inteftate  to  Jofeph  Talcott^  Efq.  trea-     ^=.J=^~ 
furer  of  the  ftate  of  Conne^licut,  to  the  ufe.      Church 
and  for  the  proper  debt  of  faid  town.  againji 

The  general  iffue  was  pleaded— and  a  ver-        ^^^ 
did  for  the  plaintiff,  Nonvich. 

For  the  defendants ^  it  was  moved  in  arreil  of 
judgement  :~ 

1.  That  the  jury  were  much  divided,  fcven 
being  for  the  plaintiffs  and  five  for  the  defen-- 
danis ;  and  that  finally  it  was  agreed  among 
themfelves,  that  the  five  minority  fhould  go  in 
filent,  and  if  the  court  difapproved  the  verdi^,  - 
the  other  feven  fhould  then  conform  to  their 
opinion  :  That  upon  hearing  the  obfervations 
of  the  court  in  the  cafe,  the  jury  were  generally 
of  opinion,  that  the  verdi6l  ought  to  have  been 
for  the  defendants, 

2.  That  the  jury  have  found  a  large  fum  in 
damages,  for  intereft;  w^hereas  the  law  will  im-- 
ply  no  obligation  on  the  i^'^'TZii^r.z^i  to  pay  the    . 
principal, .without  aftual  notice  that  the  money  . 
was  paid  for  their  benefit,  and  on  their  account, 
and  a  fpecial  requeft  of  re-payment ;  and  much    . 
lefs  for  the  payment  of  intereft.      No  fuch  re~ 
quell  is  laid  in  the  declaration  ta  have  been    ■ 
made. 

3.  Becaufe-  the  plaintiff  giomva^  his  aclioii 
wholly  on  the  equity  of  the  cafe  ;  when,  in  fa8,    . 
the  equity,  as  well  as  the  law,  appeared  on  the 
whole  matter  to  be- extremely  doubtful. 

4.  Becaufe  the  honourable  Judge  Dyer^ 
who  aQ:ed  as  Judge  in  the  cafe,  holds,  in  fee^ 
an  eftate  in  the  town  of  Norwich^  fubjeO:  to  th^ 
payment  of  taxes ;  and  fo,  by  law,  is  interePted  " 
in  the  event  of  the  caufej  and  is  alfo  uncle  to 
one  of  the  defendants. 

The  motion  ruled  infufficient. 

By 


14»  County  of  Hartf.ord^  Se?t.  Term. 

^"785"        ^^  ^^^^  Court. — [Judge  Dyer  and  Judge 

=^=4-=.^     Pitkin  giving  no  opinion)— 1.   It  does  not 

Churrh     appear,  on  enquiry,  that  the  jury  ever  made 
agatnji      the  agreement'  Hated  in  the  firft  exception. 

®  -  2.  Though  there  is  no  averment  in  the  de^. 
Norwich,  claration,  that  the  defendants  had  notice  of  the 
payment  alledgcd;  yet  it  is  averred,  they  were 
iiidebted,  and  that  being  fo  indebted,  they  pro- 
mifed;  and  the  jury  having  found  the  promife, 
muft  have  found  alfo  the  indebtedncfs,  and 
muft  have  had  proof  of  fa6ls  neceffary  to  create 
the  debt:  And  as  to  the  intercft;  though  the 
jury  have  given  intereft,  byway  of  damages,  for 
dv"tention  of  the  debt,  it  is  not  apparent  to  the 
court  that  it  is  wrong.  The  jury  may  have  had 
evidence  of  an  agreement  to  allow,  intereft,  or 
that  the  money  was  fo  applied  by  the  plaintiff 
as  to  ftop  intereft  for  the  deftndantSy  or  of  other 
fpecial  circumftances^  to  juftify  them  in  allow* 
ing  intereft. 

3.  As  to  the  equity  of  the  cafe,  that  it  was 
""      too  doubtful  to  fupport  an  action  of  this  kind  ; 

This  does  not  appear  from  the  verdi8:,  or  the 
declaration;  and  the  court  are  not  now  to  go 
into  the  evidence* 

4.  As  to  the  fuppofed  intereft  oi  Judge  Dy- 
er, it  was  too  inconfiderable  and  remote  for 
him  to  have  excufed  himfelf ;    and  if  the  de^ 

yew^^w^s  would  obj eft,  on  account  of  his  kin- 
dred to  one  of  them,  they  fhould  have  done  it 
when  the  caufe  came  on:  Having  waved  it. 
then,  it  is  unreafonable  they  fliould  take  ad-- 
vantage  of  it,  after  hearing  his  opinion  to  acv* 
cept  the  verdi6t  againft  them. 


Clark 


County  op  HARTr«F.B,  Sept.  Term.  143 

Clark  agoAnJi  Moses. 

ERROR  from  the  judgement  of  a  Jullice  of  Whenufury 
the  Peace.- Mofes  brought  his  aaion  thJp"a'**' 

againft  Clark^  on  a-promiflbry  note,  demanding  oMghctofee 
4/, — Clark  pleaded,  that  the  note  on  which,  &c.  j^incipai 
contained,  by  corrupt  contrail  and  agreement  Tum  loaned,- 
between  the  j&/^m^f^  and  defendant^  a  greater  included  fc« 
fum  than  at  the  rate  of  6/.  for  the  forbearance  Jnwrcft,thag 
of  100/.  for  a  year;  and  alfo,  that  the  plaintiff  peaiwhe- 
did,   after  the  giving  and  executing  faid  note,  ^l^^ft'^be^uru- 
viz.  in  the  month  of  July  next  after  the  date,  riou5orn»t« 
make  another  corrupt  contrail  and  agreement 
with  the  defendanty  to  take  and  receive,  and  did 
take  and  receive,  for  the  forbearance  of  the 
above  note,  more  than  at  the  rate  of  6/.  for 
tooL — and  that  the  fame  is  therefore  ufurious 
and  oppreffive. 

There  was  no  anfwer  to  this  plea  on  record; 
and  the  judgement  is  recorded  as  follows  :— 
'^^  That  the  court  having  heard  the  witneffes, 
"  and  conlidered  the  caufe,  is  of  opinion,  and 
**  judgement  is  rendered,  that  the  plea  is  not 
*'  fufficient  to  bar  the  action,  and  that  ih^  plain-- 
"  tiffxtcovtYy  &c."    ■ 

To  this  judgement,  three  errors  were  aflign- 
cd  : — 

1.  That  the  plea  not  being  anfwered,  flood 
demurred  to  of  courfe  i  and  the  fame  ought  to 
have  been  adjudged  fufficient  in  law  to  have 
barred  the  plaintiff  of  his  aftion. 

2.  That  the  Juftice  went  into  an  enquiry  of 
thefacls^  and  finding  them  fupported,  reiorted 
back  to  the  plea,  and  judged  that  to  be  infuf- 
ficicnt,  which  was  fufficient. 

3..  That  by  fuch  kind  of  irregular  decifions, 
the  party  can  never  know  upon  what  princi- 
ples judgement  is  given  againft  him ;  and  is  de- 
prived 


144 

Clark 
againfi 
Moffrs. 


County  of  Hartford,  Sept.  Ter 


M. 


prived  of  the  benefit  of  law,  either  in  defend- 
ing in  his  caufe,  or  in  obtaining  redrefs,  in 
cafe  he  is  injured. 

The  judgement  of  the  Juftice  affirmed.  * 
By  the  whole  Coujit. — Nothing  appears 
from  the  record,  but  that  fubftantial  juftice  \^ 
done  between  the  parties,  although  the  entry 
is  informal.  The  defendant's  plea,  in  fa8:,  was 
infufficient;  becaufe  it  did  not  fet  forth  the 
principal  fum  loaned, ,  nor  the  fum  included  in 
the  note  for  intereft  and  forbearance.;  fo  that 
it  might  appear  whether  the  contract  was  ufu- 
rious  or  not.  It  alfo  appears  from  the  record, 
that  the'  Juftice  heard  the  witnefles,  and  on 
confideration  of  the  cafe,  gave  judgement  for 
the  plaintiif ; — from  whence  it  may  be  con- 
cluded, that  he  found  the  defendant's  plea  not 
only  infufficient  in  law,  but  unfupportcd  by 
evidence. 


M*Clellan 


County  of  Windham,  Sept.  Term.  145 

M ^C  L  EX  LAN  againjl  Morris,  ==:=^ 

ERROR  from  tlie  court  of  common  pleas.—  Avcrrrenrs 
M'Ckllan  brought  his  a8:ion  on  a  promif-  th'^erc^orZ 
fory  note,  againft  Morrisy  reciting  the  note  in  his  ^l^''''^^ 
declaration,  which  was  in  the  following  words,  fubjTa^n  ^ 
viz.  "  For  value  received,  I  promife  to  pay  Sa^  l^'^to render 
*'  muel  M^Clellan,  or  his  order,   17/.  35.  gd,  by  the  meaning 
"  the  hrft  day  of  April  next,  or  ufe  till  paid.'*  °^^^°^'- 
There  was  no  averment  in  the  declaration  of 
what  was  meant  by  the  words,  "  ic/e  till  paid.'' 

On  demurrer,  for  the  uncertainty  of  this  de^ 
claration,  judgement,  by  the  court  of  common 
pleas,  was  for  the  defendant. 

But  the  judgement  was  here  reverfed  :    For, 

By  tpie  whole  Court. The  only  ex- 
ception to  the  declaration,  in  the  original  ac- 
tion, is,  the  uncertainty  of  the  words,  ^*  07^  ufe 
"  till  paid;''  and  that  there  is  no  averment  to 
make  them  certain. 

But  the  obvious  meaning  and  intention  of 
thofe  words,  taken  in  conne6tion  with  the  fub- 
jc8:  matter  to  which  they  arc  related,  muft  be, 
that  in  cafe  the  principal  fum  in  the  note  fhould 
not  be  paid  by  the  time  limited  for  payment, 
ufy  or  interejiy  fhould  be  allowed  thereon  after 
that  time,  until  paid.  And  the  note  being  declar- 
ed upon,  according  to  the  words  of  it,  the  legal 
fenfe  and  operation  may  be  underftood  with 
fufficient  certainty,  without  any  fpecial  aver- 
ment. 


Two  »r  more 
cannot joirt 


AiNSwoRTH  and  Others  againft  Allen. 

THIS  was  an  aftion  on  the  ftatute,    againft  foA^vf^x-Td- 
vcxatious  fuits ;    which  is,  *' That  when-  c 'u  e"thc'^^^^^ 
''  foever  any  plaintiff  fliall  wittingly  and  wil-  ju  yisfepa- 

T  T       T       r^teand  tcr- 


146  County  of  Windham,  Sept.  Term. 

~~g^     "  lingly  wrong  any  defendant^  by  commencing 
=r==4—     "  and  profccuting  any  a6lion,   luit,  complaint, 
Ainfwcrth    *'  or  indidmcnt,  in  his  own  name,  or  in  the 
d'c.        "  name  of  others,  with  ii'itent  unjuftly  to  vex 
y^jin     cc  ^j^j    trouble   fuch  defendant^   fuch  plaintiffs 
**  being  legally    convicted    thereof,    fhall  pay 
*'  treble  damages  to  the  party  grieved,   and  be 
^^  fined  the  fum  of  forty  killings. *'     The  de- 
claration was.  That  the  defendant  malicioufly 
and  unjuftly  brought  forward,  and  prqfccuted 
againft  the  plaintiff s^  a  certain   action  of  tref- 
pafs,  which  w^as  groundlefs  and  vexatious. 
The  general  iiTue  was  pleaded — and  a  ver- 
-  di6l  for  the  plaintiff's* 

Mr.  Larrahee  moved  in  arreft  of  judgement, 
for  the  infufficiency  of  the  declaration.  The 
exception  taken,  was.  That  the  injury  com- 
plained of,  was  a  mere  perfonal  injury  to  the 
plaintiffs  individually;  and  therefore  they  could 
.  not  join  in  an  a6lion  for  redrefs^ 

And  the  judgement  v/as  arrefted. 

By  the  whole  Court. Here  is  ajoint 

a6lion  by  thiGC  plaintiff's,  not  for  a  joint  wrong, 
or  an  injury  to  joint  property,  or  the  violation 
of  a  joint  right;  but  for  feparate  perfonal 
wrongs  to  each;  for  which  the  law  will  not 
fuftain  ajoint  adion.  One  perfon  has  no  right 
to  recover  for  the  wrongs  done  to  another ; 
nor  is  there  any  rule,  in  a  cafe  like  this,  to  ap- 
portion the  damages  found,  to  the  wrongs  of 
each,  though  they  may  be  variant,  as  well  as 
diftinQ  :  One  may  have  fuffered  imprifonment, 
another  the  lofs  of  his  property,  and  a  third, 
only  vexation  of  mind. 


Stor 


ER 


County  Of  Windham,  Sept.  Term.  147 

Storer  againjl  Hinkley  ^nJ  Throop,  Exe-^ 
cuto?'s  0/ HiNKLEY,  deceafed, 

THIS  was  a  petition  in  chancery. The  in  cafe  of 

cafe  was,— That  Charles  Hinkley  and  Ja-^  Kts'clch 

bez  V/eJly  being  merchants  in  company,   under  oneiuthaa 

the  firm  of  Hinkley  and  Weft,  became  indebted  po^i^to 

to  the  petitioner,  for  goods  received  to  their  co^  tra<a  for 

•     •  r  r^  r  ^4.1  ^      r  ^\  and  bind  the 

joint  uie.    On  a  lettiement  of  the  company  ac-  other,mtLe 
counts  with  the  petitioner,  V/eJl   executed  to  '^^'f\''i 
him  a  note,  for  the  fum  found  due,   under  the  ncfsv  and  if 
firm  of  the  houfe,  viz.  Hinkley  and  Wcfl.      After  an^"^e  idc 
this,   ana  before  any  payment  made,   the  part-  one,  i .  be- 
nerfhip  of  Hinkley  and  V/eJi  was  diirolved,  and  felf.^aolTtl 
the  duty  of  fettling  the  debts  of  the  company  ner/orby 
devolved  upon  Weji,  who  received  the  compa-  theromp'J- 
ny's  property  for  that  purpofe.     Hinkley,  feme  ny,Kisg  .oi 
time  after,  died,  leaving  FF^y?  the  only  furviv-  sowhe'e^^' 
iftg  partner,  who  continued  for  feveral  years  »neofnro 
able  to  difcharge  his  debts ;  but  before  demand  dunVs'd'Vs, 
was  made  upon   him  by  Storer,  he  became  a  and  judge- 
bankrupt,  and  abfconded  out  of  the  ftatc. —  cove  ed^u- 
Storer,  however,   comiTienced  his  fuit  againft  g^^^^.^/^e 
Wejly  recovered  judgement,  and  had  a  return  p,,Kucr"^'or 
oi  non  ell  inventus,  upon  his  execution.  a  company 

The  petition   luggelted,  that  the  petitionee  bee-mesa 
was  without  remedy  at  law,  and  prayed  for  a  ^ef  n-Tan 
decree,  that  the  executors  of  Charles  Hinkley  faaionjs" 
(who  died,  leaving  a  large   eftate)   fhould  be  ^cu torpor ^ 
compelled  to  difcharge  faid  debt.  ^'^e  other 


The   refpondents  pleaded    in  abatement,    in 


may  be 

comp'rlled 

nature  of  a  demurrer,  upon  which  the  follow-  j'"  chancery 

•     ^  1  to  mskc  ill- 

mg  points  were  made  :  xhUCtion. 

It  was  urged,  on  the  part  of  the  refpondents, 
xh2iX.  Storer,  having  accepted  of  the  note  from 
Wejl,  figned  and  executed  by  himfelf  only,  by 
the  name  of  Weft  and  Hinkley,  the  demand  againll 
the  company  thereby  became  fettled  and  ex- 
T  2  tinguiilied. 


148.  County  of  Windham,  Sept.  Term. 

1786.     tinguiflied,  and  was   fixed   upon   Wefi  folely  : 

= ~     For  that  Hhikley,  not  having  executed  the  note, 

Storcr      and  not  being  privy  thereto,  it  was  not  his  aB, 
^ga^nji     j^Qj^  could  he.  or  his  executors,  be  obliged  by 
^J;    It.  But, 

The  Court  refolved — That  according  to 
the  cuftom  of  merchants,  in  cafe  of  co-part- 
ners, and  from  the  nature  of  the  connexion 
and  bufmefs,  each  one  hath  an  implied  power 
to  contrail  for  and  bind  the  other  :  And  that 
a  note  given  for  a  company  debt,  by  one  joint 
merchant,  in  the  name  of  himfelf  and  partner, 
or  by  the  firm  of  the  company,  is  good  againft 
all. 

It  was  further  urged,  on  the. part  of  the  r<?- 
fp07idents—T\\2X  the  petition  being  brought  a- 
gainft  them,  as  executors,  to  fubjeft  their  pcr- 
fons  and  property,  in  the  firil  inftance,  to  the 
payment  of  faid  debt,  was  contrary  to  the  prin- 
ciples of  law  and  equity ;  and  that  if  the  peti- 
tioner had  any  remedy  agaiiift  them  for  faid 
debt,  it  was  at  law,  and  not  in  chancery.  But, 
The  Court  refolved — That  the  petitioner. 
had  no  remedy  againft  them  at  law  ;  and  that 
they  being  named,  and  proceeded  againft  in 
the  petition,  as  executors,  the  court  would  re- 
gard them  as  fuch  in  the  decree  ;  and  therefore 
decreed,  that  the  petitioner  Ihould  recover  of 
the  refpondentSy  in  their  capacity  of  executors, 
the  fum  of  faid  debt,  to  be  paid  out  of  the  ef- 
.    tate  of  faid  deceafed  in  their  hands. 

This  judgement  was  afterwards  affirmed  in  the 
fupremc  court  of  errors. 


CoiT 


County  of  New-London,  Sept.  Term.  149 

Co  IT  againjl  Bull. 

THIS  v^diSdi  fcire facias y  digdiinii garniJJiee.—  Atnnsfero£ 
The  plaintiff  brought  his  original  aaion  IroZffJT 
d^gdjiu^  Morfe^hy  foreign  attachment ;  which,  on  aferche  _ 
the  27th  day  of  September,  1784^^  was  regular-  ItllliyZt^- 
ly  ferved  upon  Biill  (the  garnifkee)  by  copy,  he  cdwitha 
being  indebted  to  Morfe  by  promiffory  note. —  u^mcofa 
Tudojement  was  obtained  by  the  plaintiff' -dgM-oM  ^o-e'S'^  ^^- 
Merje,  execution  liiued,  and  non  eji  inventus  re~  void  in  ia\?s 

turned.  ^  thJ^'m^^' 

And  now,  to  xki^  fcirc  facials  Bull  "^X^id^Atdi-—  shse". 
That  on  the  7  th  day  of  December,  1784,  Morf^ 
being  in  poifeffion  of  laid  note,  did,  by  a  pro- 
per writing,  endorfed  on  the  back  thereof, 
make  over  and  affign  the  fame,  and  the  monev 
due  thereon,  for  a  ^valuable  confideration,  to 
Mcffrs.  Morris  and  Lawrence,  merchants,  in 
New- York;  whereby  the  property  of  faid  note 
was  legally  transferred  to  faid  Morris  and  Lazc- 
rence,  and  they  only  became  entitled  to  re- 
ceive and  recover  the  fame  of  him. 

On  demurrer,  this  plea  was  adjudged  iiifuf- 
ficicnt :  And, 

By  the  whole  Court. — —In  this  cafe  it 
appears,  that  the  fervice  of  the  foreign  attach^ 
7nent  on  the  defendant,  was  prior  to  the  affign- 
ment  of  the  note  to  Morris  and  Lawrence ;  and 
after  fervice,  the  original  promiffee  could  have 
no  right  to  receive  or  difpofe  of  the  debt  con- 
tained in  the  note,  without  lirft  fatisfying  the 
plaintiff's  demand. 

It  was  further  obje6lcd  by  the  plaintiff,  that 
notes  are  not  by  law  transferable  in  this  flate ; 
but  it  is  not  neccffary,  in  this  cafe,  to  give  an 
opinion  on  that  point. 


PUND£RS0N 


I50 


County  of  New-London,  Sept.  Term. 


; — — =i:     Fvi^DLKson  agaiTi/l  Shaw,  Executor  of  Shaw, 

deceafed. 


An  article 
o mi  ted  in 
fcttlcmencof 
accounts, 
cannot  be 
charged  in  a 
(ubreqnent 
account; 
nor  can  the 
plaintiff's 
tcflimony 
be  admitted 
to  fupport 
futh  charge. 


THIS  was  an  aBion  of  book-debt,  and  the 
general  iflue  pleaded. 
As  the  cafe  opened  on  trial,  it  appeared, 
that  the  only  queftion  between  the  parties  re- 
fpefted  one  article  of  the  plaintiff's  account, 
which  accrued  antecedent  to  a  fettlement  by 
them  made  and  fubfcribed. 

Mr.  Waity  for  the  defendant y  objefted  to  the 
teflimony  of  the  plaintiff]  refpe6ting  the  point 
in  conteft  :  He  urged,  that  whether  the  article 
claimed  had  been  omitted  in  the  former  fettle- 
ment, was  a  fa8:  not  proper  to  be  afcertained 
by  the  teflimony  of  the  party  :  That  the  plain- 
tiff having  acknowledged  a  fettlement,  under 
his  hand,  he  fhall  not  now  be  permitted  to  come 
into  court,  and  teftify  in  contradiction  to  it. — 
He  cited  the  cafe  of  Waldron  vs.  Eldridgey  where 
the  fame  point  was  adjudged  lad  term. 

By  the  Court."-  A  miftake  in  a  former 
fettlement  cannot  be  admitted  as  a  legal  charge 
on  book  :  The  party  affcfted  by  it  muft  have 
his  remedy  by  another  kind  of  aftion.  The 
ftatute  which  permits  interefted  perfons  to  tei- 
tify  in  the  a6lion  of  book-debt,  is  not  peremp- 
tory. There  may  be  many  exceptions  where- 
in he  fhall  be  excluded  his  teflimony.  And 
wherever  there  appears  a  fettlement  under 
hand,  the  court  will  never  admit  the  parties 
to  go  over  it;  for  it  would  open  a  door  for 
great  uncertainty  and  injuftice.  In  the  late 
cafe  of  Waldron,  which  was  an  a6lion  of  book- 
debt,  the  queftion  was,  whether  the  parties 
might  go  beyond  a  former  fettlement,  and  it 
■was  adjudged  they  fhould  not. 

jfudge  Dyer,  diffeniing. This  is  an  ac- 
tion of  book-debt,    and  the  general  iffue  is 

pleaded  ; 


County  op  New-London,  Sept.  Term.  151 

pleaded  ;  the  caufc,  therefore,  lie's  open  for  an     "^^85^ 
enquiry  at  large.     The  law  admits  the  parties     ==L=^ 
to  teftify  in  this  kind  of  aftion,  and  if  their  tef-    Pundcrfoa 
timony  is  confronted  by  any  other  kind  of  evi-     «^«?»/ 
dencc,  the  court  will  duly  weigh  it.     There      ^^*^' 
may  happen  very  many  inftances,  where  there 
is  the  fame  ncceffity  for  the  admiffion  of  the 
party's  oath,    to  fupport  a  charge  like  this,    as 
there  could  have  been  to  fupport  the  original 
charge,  and  confcquentl)  the  fame  reafoi?. 

The  defendant,  by  not  pleading  in  bar,  has 
waved  all  benefit  by  this  objection  :  A  former 
judgement,  or  a  fcttlement,  is  undoubtedly 
good  matter  of  bar;  but  if  the  party  will 
not  plead  it  fpecially,  he  can  take  no  advan« 
tage  of  it ;  therefore,  the  tellimony  of  the 
plaintiff  in  this  cafe  is  admiffiblc. 

The  plaintiff' then  offered  other  diUntereft-. 
cd  witneffes,  to  prove  the  fame  fad  ^  but  they 
were  refufed  by  the  court,  becaufe  the  article 
was  not  fupportable  as  a  charge  on  book. 

Judge  Dyer,  dijjenting. — -The  article  charg- 
ed, and  now  contended  for,  is  admitted  to  have 
been  a  good  charge  on  book,  and  in  that  way 
recoverable,  if  the  fettlement  referred  to  does 
not  conclude  the  plaintiff^. 

Note. — In  this  cafe  the  plaintiff^  jiled  a  hill  of 
exceptions,  and  carried  the  cafe  to  thefupreme  court 
of  errors ;  and  there  the  judgement  was  ajffirmed^ 


Ho  LM E i  again/l  Buown. 

N  an  aQion  on  the  cafe,  for  words,  the  plaifi^ 
tiff  offered  witneffes,  to  prove  the  dfcndant 
had  fpoken  like  words,  after  the  commence- 
ment of  the  fait,  in  order  to  fliow  the  malicious 

intend 


22  County  of  New-London,  Sept.  Term. 

=^Tog^  intent  of  the  defendant ;  but  they  were  rcfufed  by 

==4:=:^  the  courty  becaufe  a  recovery  in  this  atHoivwould 

Holmes  be  no  bar  to  a  recovery  for  fuch  fubfequent 

pgain^  words. 
Brown. 


Wight  againft  Mott  and  Downer. 

A  judge-        "Y?  RROR  from  the  judgement  of  a  Juftice  of 

dl^edX'      -^   the  Peace. The  plaintiff  in  error  (as 

corJcffion  jg  fuggefted)  confeffed  a  judgement  on  a  note 
p"e1^'the^^'  to  the  defendants^  the  contents  of  which,  with 
paiticuiar  intcrefl,  amounted  to  27/.  35.  r^d.  The  Tuftice 
inisfor,6hat  entered  up  two  diitmtt  judgements,  the  one 
it  may  be      £^j,  ^q/.  and  the  other  for  the  remainder.     The 

plead.*  Die  in   ^      ,  i     >    •        >        r  ^ 

bar  of  a       judgements  wcrc   recorced  m  the  lame  words 

muidfoVrhe  ( cxccpt  the  fuTiis)  as  follows  : — ''  Perfonally  ap- 

famethinij.    ^' peared,    7^y?/A  PFi'^A/,  of  Norwich,  and  con- 

^'  felTcd  judgement,  that  hejuftly  owed  Edzvard^ 

"  Mott  and  Jojlma  DowvxVy  of  Prefton,  in  faid 

**  county,  20/.  lawful  money,  debt,  and  15.  6i. 

"  coft;    wherefore,   it    is    confidered    by   this 

'^  court,    that  faid  Mott  and  Doxuner  recover, 

-.      «  &c." 

The  note  was  lodged  on  fie,  without  any  en- 
try upon  it ;  nor  was  there  any  reference  in  the 
record,  to  the  note,  or  any  other  thing. 

The  error  affigned  was,  that  the  Juflice  ren- 
dered two  judgements  on  one  confeffion  ; — 
whereas,  by  law,  he  ought  not  to  have  render- 
ed any  judgement,  the  fum  being  beyond  his 
jurifdiftion. 

It  was  contended,  by  Mr.  Huntington  and 
Mr.  Spaldingy  ^or  tht  plaintiff' m  error,  that  the 
proceedings  of  the  Juftice  were  man ifeftly  erro- 
neous on  every  principle,  if  the  writ  of  error 
contained  a  true  ftating  :    That  the  defendants, 

bv 


County  of  New-London,  Sept.  Terk,  leg 

by  putting  in  a  general  plea,  had  admitted  eve-     ^^^Tk^ 
ly  thing  contained  in  the  writ,  and  could  now     a=rr-J„T-4 
conteft  nothing  but  the  legal  conclufion.     But      Wighj 
all  averments  in  the  writ  being  laid  afide,  the      ^i^'"J^ 
judgements  will  ftill  appear  to  be  illegal,  from    ^i^'^'  *"^ 
the  face  of  the  record ;  for  they  do  not  refer       ®^'"*'^* 
to  any  particular  debt,   and  could  never  be 
pleaded  in  bar  of  any  demand  whatever.    The 
note  is  brought  up  as  part  of  the  record  on 
which  the  judgements  are  founded  ;  it  does  not 
compare  with  either  of  them ;— it  is,  therefore, 
not  difcharged  or  affe6led  by  them,  but  is  ftill 
liable  to  be  put  in  fuit. 

It  was   contended  by  Mr.   Halfey  and  Mr. 
Peters,  for  the  defendants  in  error,    that  no  ar- 
guments were  applicable  to  the  cafe,    but  fuch 
as  could  fairly  be  drawn  from  the  face  of  the 
record  itfelf ;  and  no  averment  in  the  writ,  un- 
fupported  by  the  record,  could  lay  a  foundation 
for  reverfaL     Here  were  two  complete  records 
of  two  judgements,  within  the  jurifdiHion   of 
the  Juftice;  the  court,  therefore,  could  not,  by 
intendment,  fuppofc  there  was  but  one  confef» 
fion,  for  it  would  contradiO:  the  record  i  nor 
could  it  be  fuppofed  that  they  were  rendered 
without  legal  foundation,  for  the  record  ex- 
preffed  fufficient  ground  to  found  a  judgement. 
The  flatute  allowing  confeiTions  to  be  taken,  is 
in  thefe  general  terms  :   "  That  any  Jujlice  of 
*^  the  Peace  is  empowered  to  take  and  accept  a 
"  confefTion  and  acknowledgement  of  any  debt^ 
"  from  a  debtor  to  his  creditor,  either  upon  or 
"without  antecedent  procefs,    as  the  parties 
"  fhall  agree ;  which  confeffion  fliall  be  made 
"  only  by  the  perfon  of  the  debtor  himfelf : 
^'  And  on  fuch  confeffion  fo  made,  the  Juftice 
*'  iliall  make    a  record  thereof,    and   thereon 
*'  grant  out  execution,   in  due  form   of  law. 
^*  Provided,  no  ilich  confeffion  fhall  be  taken 
U  «^for 


154 

Wight 

Mott  and 
Downer. 


AvermetT-s 
cont  ary  to 
the  r-:^co;d, 
not,  dmif- 
fiule. 


CdtTNTY  OF  New-London,  Sei't.  Tekm. 

"  for  more  than  twenty  pounds  debt.'*-— This 
ftatute  prcfcribes  no  particular  form  of  entry. 
The  note  being  the  only  evidence  of  the  debt 
on  which  the  judgements  were  founded,  and 
becoming  a  part  of  the  Juftice's  files  and  re- 
cords, can  never  fubje6l  the  debtor  to  any  fu^ 
ture  demand  for  the  fame  thing. 
•         The  judgement  revcrfed. 

By  D  Y  E  R,  P I T K I N  and  E l ls wo -r t h,  JudgeSr 

Though  the  ftatute  prefcribes  no  form  of 

a  confeilion,  or  entry  of  a  judgement  thereon,^, 
yet  the  reafon  and  nature  of  the  cafe  require, 
that  judgement  upon  a  confeffion  fhould  exprefs 
the  particular  debt  or  diuy,  about  which  it  is 
converfant,  as  a  debt  due  by  a  certain  note  or 
bond,  or  to  balance  book  accounts,  &c.  that 
the  judgement  m.ay  bar  a  future  demand  for 
the  fame  thing.  Here  the  judgement  is  not 
predicated  upon,  nor  doth  it  appear  to  have  re- 
lation to  any  particular  debt  or  duty,  and  would 
not  be  a  bar  to  any  demand  whatever;  it  is, 
therefore,  deficient  and  erroneous. 

As  to  the  other  matter  alledged  in  error, 
that  the  Juftice  took  a  confeffion  for  27/.  and 
thereupon  entered  two  judgements ;  though 
fuch  a  proceeding  would  be  erroneous,  it  does 
not  appear  to  have  been  the  cafe.  The  aver- 
ment is  contrary  to  the  record,  and  therefore 
not  admiffible. 

Law,  Chief  Jujlice^  and  ^7^ J^^  Sherman; 

dijjenting, As   the  law  relating,  to  confcf- 

fions  is,  that  a  Juftice  may  take  a  confeffion 
for  a  debt  not  exceeding  twenty  pounds,  which 
confeffion  the  Juftice  is  dire^ed  to  take;  and 
there  is  no  diredion  requiring  the  Juftice,  in 
his  record,  to  fpccify  on  what  account  the  debt 
originated ;  we  therefore  doubt,  whether,  if 
omitted,  it  is  caufe  of  error.  At  the  fame  time, 
wc  think  it  is   well  enough,  that   the    Juftice 

Ihould 


County  of  New-London,  Sept.  Term.  155 

fliould  mention  in  his  judgement  on  what  ac-  ^^35^ 
count  it  arofe,  as  thereby  it  may  be  beneficial  ===== 
to  prevent  any  future  difputc.  Wight 

again  ^ 
Mot£  and 


Mack  againji  Parsons  and  Others. 

ERROR  from  the  court  of  common  pleas. —  Afon-in- 
The  felc&-men  of  the  town  of  Lyme,  hoTdeV^fcr 
brought  their  petition  to  the  court  of  common  ti^eiupporc^ 
pleas,  fetting  forth — "That  Samuel' Bennety  of  parents', 
*•  faid  Lyme,  by  reafon  of  age  and  infirmity, 
"  has  become  pooTy  impotent^  and  unable  to 
"  maintain  himfeif  ^  and  that  he  has  no  eftate 
"  wherewith  it  may  done:-  That  Elizabeth  Mack ^ 
''  of  faid  Lyme,  is  the  daughter  of  faid  Bennety 
**  an^  lawful  wife  oTJoJiah  Mack ;  and  that  faid 
"  JofiaJi  Mack  is  poffeiTed;  in  faid  Lyme,  of  a 
"  large  and  plentiful  eftate,  and  is  abundantly 
*^  able  to  maintain  and  fupport  his  wife's  faid 
*^  father;  and  that  {diid  Jojiah  is  the  only  rela- 
"  tion  able  to  maintain  faid  Samuel ;  therefore 
praying  the  court  to  order  and  decree,  that 
he  provide  for  and  fupport  faid  Samuel^ 
"  agreeably  to  the  ftatute  in  fuch  cafe  provid- 
''  ed."  By  which  ftatute  it  is  enafted,  ''  That 
"  when  and  fo  often  as  it  fiiall  happen,  that 
"  any  perfon  or  perfons  fhall  be  naturally  want- 
*^  ing  of  underftanding,  fo  as  to  be  incapable 
"  to  provide  for  themfelves ;  or  by  the  provi- 
"  dence  of  God  ftiall  fall  into  diftraciioii,  and 
'^  become  non  compos  mentis ;  or  ftiall,  by  age, 
*'  ficknefs,  or  otherwife,  become  poor  and  im- 
'^  potent,  and  unable  to  fupport  or  provide  for 
"  themfelves;  and  having  no  eftate  wherewithal 
*'  they  may  be  fupported  and  maintained,  then 
*^  they,  and  every  of  them,  ftiall  be  provided 
U  z  for, 


(C 


156 

Mack 
Parfons, 


County  of  New-London,  Sept.  Term» 

"  for,  taken  care  of,  and  fupportcd  by  fuch  of 
"  their  relations  as  ftand  in- the  line  or  degree 
"  of  father  or  mother,  grand-father  or  grand- 
'*  mother,  children  or  grand-children,  if  they 
*'  are  of  fufiBcicnt  ability  to  do  the  fame." 

The  rcfpondcnt  demurred ;  but  the  court  of 
common  pleas  adjudged,  that  the  fads  ftated 
were  fufficient  to  warrant  a  decree ;  and  there- 
upon did  decree,  that  the  plaintiff  in  error 
fhould  fupport  faid  Samuely  agreeably,  to  the 
prayer  of  the  petition. 

Two  exceptions  were  taken  to  this  decree. 

1.  That  the  ftatute  extends  to  natural  reTa,- 
tions  only,  by  force  of  which  a  pcrfon  is  obli- 
ged to  fupport  his  relations  by  blood  (if  needy) 
within  the  degrees  mentioned  in  the  ftatute, 
and  no  others. 

2.  That  if  there  is  any  liability,  it  is  a  duty 
of  the  wife,  which  is  thrown  upon  the  hufband, 
in  confequence  of  the  marriage ;  and  therefore, 
the  wife  ought  to  have  been  joined  in  the  pro- 
cefs. 

And  the  judgement  was  reverfed. 

By  the  whole  Court. A  fon-in-law 

is  not  holden  for  the  parents  fupport  within  the 
words  of  the  ftatute;  nor  is  he  within  the  in- 
tent of  it,  which  is  merely  to  enforce  the  law 
of  nature,  or  the  mutual  obligation  of  fupport 
between  parent  and  child,  refulting  from  that 
law,  or  their  natural  relation  to  each  other ; — 
and  fo  has  been  the  expofition  of  the  ftatute  of 
England,  expreffed  in  like  terms  (2  Strange^ 
955>  ^^^  vs.  Dcmpfon,)    Sec  Rex  vs.  Munden, 


t  Ncte.-^The  Englifh  ftatute,  43  Elizabeth,  cap.  z-  is 
expreffed  in  thefe  words  : — **  That  the  father  and  grand- 
"  father,  and  the  mother  and  grand-mother,  and  the  chil- 
*'  dren  of  every  poor,  old,  blind,  lame  or  impotent  perfon, 
•*  or  other  poor  perfoa  not  able  to  work,  being  of  a  fuffici- 
ent 


County  of  New-London,  Sept.  Term.  1^57 

1  Strange,  19O.  t  There  the  fon-in-law  was  ad-  "^^§57 

judged  to  be  not  holden,  though  he  received  a  ==L=^ 

good  fortui>e  with  his  wife.  Here  none  was  re-  Mack 

ccived.  fs^^'l^ 

ParoHF^ 

"  ent  ability,  fliall,   at  their  own   charges,  relieve  and         ^^' 

*'  maintain  every  fuch  poor  pcrfon,  in  that  manner,  and 

"  according  to  that  rate,  as  by  the  Jullices  of  the  Peace  of 

^'  that  ceunty  where  fuch  fafficient  perfoas  dwell,   or  the 

*'  greater  number  of  them,  at  their  general  quarter  feliions, 

'*  fhall  be  affefTsd.'* 


Minor  againjl  Cook. 


THIS  WdiS  2i  fcire  Jacias  digdiin^  garni/Iiee  ;  I'^aprrcefs, 
to  which  he  pleaded,  that  Benjamin  Shcdr^  attachment 
maUy  defendant  in  the  original  fuit,  was  not,  at  ^'^"^^^^s^^^ 
the  time  of  bringing  faid  fuit,   an  abfent  or  ab-  tL^oTiginri 
fconding  debtor. ;  but,  at  that  time,  and  for  more  ^^^-^\  ^^^^ 
than  eight  months  next  preceding,  had  been  a  shaii  take 
dweller  in  the  town  of  Norwi'ch^  and  the  plain--  ^^.^^l^fr" 
tiff*sdtht  (i/ any)  diro^e  for  boarding  and  lodg-  onthefche 
ing  faid  Shearman  in  his  houfe  during  faid  term ;  ^i^^Jiufn"  .^ 
and  that  the  original  writ  was  never  ferved  upon 
faid  Shearman  in  any  manner  whatever,  either 
by  copy  or  reading;  wherefore  there  was  no  le- 
gal foundation  for  a  judgement  in  faid  fuit. 

There  was  a  replication,  rejoinder  and  de- 
murrer thereto ;  and  upon  the  infufficiency  of 
the  plea,  judgement  was  for  the  plaintiff. 

By  the  whole  Court. — Benjamin  Shear^ 
many  the  principal  debtor,  is  defcribed  in  the 
declaration  in  the  original  aclion,  to  be  an  in- 
habitant of  the  ftate  of  Rhode-Idand  ;  and  if 
he  had  any  relidence  in  this  ftate,  at  the  time  of 
ferving  the  writ,  fo  that  he  ought,  by^  law,  to 
have  been  ferved  with  a  copy  of  it;  and  that  was 
omitted,  it  might  have  been  pleaded  in  abate- 
ment 


58  County  of  Niw-London,  Sept.  Term. 

^786^     ment  to  the  a6lion;  but  the  garnifhee  cannot 
=====     take  advantage  of  it  in  this  fuit;  nor  can  that 
Minor      omiffion  any  way  prejudice  hira  ;  for  he  will  be 
agaii^     indemnified  againil  any  recovery  by  faid  5A^^r- 
°°  '       man^  to  the  amount  of  what  Ihall  be  recovered 
,  of  him  by  the  plaintiff  in  this  fuit ;  and  if  Shear- 
man has  fuffercd  for  want  of  legal  notice,  he  on- 
ly has  right  to  apply  for  redrefs. 


MiNon  againjl  Erving's  Executors. 

THIS  was  an  a6lion  of  book-debt. — The 
cafe,  as  ftated  in  the  pleadings  and  found 
by  the  jury,  was  this  : — On  the  11th  day  of 
July,  A.  D.  1782,  the  tejtator  convenanted 
with  the  plaintiff  to  fell  him  a  certain  lot  of 
land;  and  in  confideration  thereof,  the  plain- 
tiff paid  the  fum  of  twelve  pounds,  and  took 

the    following    writing  : "  Received   of 

**  Ephraim  Miner y  twelve  pounds,  in  part  of 
"  my  water  lot,  in  the  towm  of  New-London, 
*^  which  I  have  this  day  fold  him  for  900/. — 
"  300/.  of  which  is  to  be  paid,  in  money,  in 
*'  the  courfe  of  two  months,  and  the  refidue, 
"  being  600/.  to  be  fccured  by  a  mortgage  of 
**  the  premifes.'* 

Minor  took  immediate  poffeffion  of  the  land, 
by  the  confent  of  Erving^  who,  at  the  fame 
time,  advifed  him  to  ere61t  a  houfe,  and  make 
other  improvements  upon  it,  affuring  him,  that 
in  cafe  he  fliould  fail  to  make  payment,  fo  as 
to  acquire  a  title,  he  fhould  not  lofe  the  bet- 
terment fo  made. 

Minor  failed  to  make'  payment,  fo  as  to  ac- 
quire a  title  to  the  land;  and  an  a8:ion  of  e- 
jeftment  bein^  brought  againil  him,  he  brought 

this 


County  ©f  New-London^  Sept.  Term.  159 

this  a&ion  of  book-debt^  for  the  labour^  mate-  "^^§57 
rials,  &c.  laid  out  and  expended  in  ere61ing  ====: 
buildings  upon  laid  land.  '  Minor 

Thefe  fa8:s  being  pleaded,  and  found  by  the      c.gainp^ 
jury;  and  a  verdia  for  the  plaintifF— Mr.  Colt  g^^cu^frl 
moved  in   arreft  of  judgement,    affigning  for 
caufe  : — 

1.  That  from  the  fafls  difclofed  in  the  plead- 
ings, it  appears,  the  plaintiff's  demand  arofe 
out  of  a  fpecial  contraQ:,  made  between  Imii  and 
the  deceafed,  and  committed  to  writing :  That 
if  any  thing  was  due  to  the  plaintifF,  he  ought 
to  have  brought, his  fpecial  aftion,  or  bill  in 
equity,  for  the  cafe  ftated  will  not  fupport  an 
aPdon  on  book. 

2.  That  the  iffue  put  to  the  jury  is  totally 
immaterial  and  improper. 

By  the  Court. — If  the  betterments  made 
by  the  plaintifF  oa  the  defendants  land,  were 
done  for  his  benefit,  and  at  his  requeft  (as  the 
jury  have  found)  he  thereby  became  liable  to 
Hand  charged ;  and  an  account  thereof  might 
be  charged  oh  book,  and  a  recovery  had  in  this 
adion. 

As  to  the  iifue  being  immaterial — the  alle- 
gation, that  the  betterments  were  made  by  the 
dire8:ion  of  the  deceafed  (whereby  he  becam.e 
indebted  to  the  plaintifF)  was  material;  and  that 
pa^t  of  the  iffue  being  found,  entitles  the  plain- 
tilt  to  a  recovery. 

Note. — Chief  Juftice,  Law,  cxcujci  himfelf 
from  judging  in  this  cafe. 


Parks  againf  Morgan. 

ACTION  qui  tarn,  for  burglary.— The  de* 
fendant  pleaded  to  the  jurifdi6>ion,  that 
the  aclion,   being  a  private  adion,   demandins^ 


i6o  County  of  New-London,  Sept.  Term. 

*~i^6r  damages  for  a  fuppofcd  theft,   ought  to  have 

=====  been  brought  up  before  the   court  of  common 

Parks  pleas,  and  not  to  the  fuperior  court ; — but  the 

again]}  ^Qm^t  refolved  they  had  jurifdi6Uon. 

Morgan.  ^           •* 


Powers  againfl  Lillml, 
Txrojnatie-     T7  RROll  from  the  court  of  common  picas, 

ler- 


'*'^Tcm"'     -^-^   ^^^  ^^^'^'^  feparatc  judgements.— Anne 


til  ks  of  a  Lillie,  being  executrix  of  Theophilus  Lilliey  de 
i'Sdepfnd-  ceafed,  brought  tv/o  feveral  a8;ions  to  the  court 
ingon  fimi-  of  common  pleas,  againfl  Powers,  on  promif- 
pTJ'j^maybe  ^^ry  notes  given  to  the  deceafed.  Powers  filed 
joined  in  the  his  motion,  flatin,^,  that  early  in  the  year  177/^, 

lame  writ  ©t      ^  ^,  '^        ^      ri      ni-    •        l  l 

cnor.  at  tlie  commencement  or  holiiiities  between  the 

king  of  Great-Britain  and  the  United  States, 
the  faid  Theophilus  joined  the  Britifh  troops, 
and  remained  with  them  until  tiie  time  of  his 
death:  That  in  May,  1775,  the  faid  Powers 
procured  a  fufficient  fum  of  money  to  difcharge 
faid  notes,  and  repaired  to  the  town  of  Boflon 
for  that  purpofe,  but  could  not  gain  accefs  to 
faid  Lillie :  That  he  returned,  and  kept  the 
money  by  him,  till  April,  1776,  when  he  again 
went  to  Boflon,  and  was  informed,  that  Lillie 
had  embarked  with  the  Britifli  forces,  at  the 
evacuation  of  the  town,  and  had  left  no  agent 
or  attorney. to  whom  the  money  could  be  paid 
or  tendered.  Therefore  moved  the  court  c- 
x^uitably  to  confider  and  determine  the  cafe, 
according  to  the  flatute  in  fuch  cafe  provided. 
*  By  which  flatute   it  is    enacled — "  That  in 

"  every  fuit  or  profecution  that  fliall  or  may  be 
"  commenced  by  any  perfon  or  ^erfons  that 
*^  have  gone  to^   or  remained  with  the  enemy, 

2  gain  if 


County  of  New-London,  Sept.  Term.  loi 

**  againft  any  perfon  or  perfons  who  have  re--     ^"^-[Tis^ 
**  mained  without  the  power  of  the  enemy,  it     =i==^ 
**  (iiall  and  may  be  lawful  for  the  court  in  which      Powers 
'^  fuch  fuit  fliall  be  commenced  or  profecuted,     againfi 
*^  and  faid  court  is  hereby  authorifed,  on  motion      i^^^^^"' 
"  of  the  defendant,  or  his  attorney,  to  try  and 
^^  determine  faid  caufe  or  matter  in  controverfy^ 
*^  according  to  the  rules  of  equity,  or  appoint 
**  three  referees,  at  the  option  of  court,  to  try 
^^  the  matters  in  controverfy ;  and  the  defen» 
'*  dant  iliall,  and  hereby  is   allowed,  to  plead 
*^  before  fuch  court,    or  referees,    any  fpccial 
**  matter,   relative  either  to  principal  or  inte-- 
*'  reft.      And  if  it  fliall  appear  to  faid  court  or 
^*  referees,  that  the  fpecial  matter  alledged  and 
^*  proved  by  the  defendant,  is  of  fuch  a  nature, 
^^  that  in  equity  and  good  confcience,  abate- 
"  ment  either  from  the  principal  or  intereft  of 
^*  any  fum  or  fums,  due  by  fuch  defendant  or 
"  defendants,  ought  to  be  made :  That  on  re- 
"  port  of  the  referees,  or  finding  of  the  courts 
"  fuch  court  is  authorifed  and  empowered,  as  a 
^*  court  of  chancery,  to  make  fuch  order  and 
"  decree  thereon,  as  in  juftice  and  equity  fuch 
"  court  fhall  find  equitable,  both  in  relation  to 
"  debt  and  cofts  of  fuit.'* 

The  court  of  common  pleas  went  into  an  en- 
quiry, agreeably  to  the  (tatute. — Two  witneffes 
teftified  to  the  fa6ls  ftated  in  the  motion,  whofe 
depofitions  were  flated  at  large  in  the  writ  of  er- 
ror ;  and  the  court  rendered  judgem.ent  for  the 
principal  fum  only,  contained  in  the  notes. 

The  errors  complained  of,  were,  that  the 
court  of  common  pleas  adjudged  they  were  not 
authorifed  and  warranted  by  the  ftatute  law  re- 
lied on,  to  make  any  larger  dedu6lion  from  the 
plaintiff's  demand  than  the  intereft  of  the  debt ; 
whereas,  by  virtue  of  the  ftatute,  faid  co.urt  was 
enabled  to  deduQ:  not  only  intereft,  but  princi- 
pal, according  to  the  equity  of  the  cafe, 

\V  Mr, 


i62  CotTNTY  OF  New-London,  Sept.  Term. 

~Tg57  ■^^*  ^^^^  ^"^  ^1'-  Spalding,  for  the  defendant 

=====     in  error,  pleaded  in  abatement,  that  the  writ 

Powers      being  brought  on  two  feveral  and  independent 

^/^//^     judgements,  having  no  connexion  with  each 

^^'      other,  was  not  fuftainable. 

They  contended — That  but  one  judgement 
can  be  confidered  in  one  writ  of  error : — ^This 
principle  is,  fairly  infered  from  the  general  doc- 
trine on  the  fubjed,  that  a  judgement  cannot  be 
rcverfed  in  part  only.  The  feparate  judgements 
may  admit  of  feparate  defences,  which  would 
create  confufion,  w^ere  they  to  be  brought  up 
and  confidered  in  one  writ. 

In  fupport  of  the  writ,  it  w^as  faid,  by  Mr. 
Bahccck  and  Mr.  Brainard — That  it  had  been 
adjudged  by  this  court,  that  two  promiffory 
notes  might  be  joined  in  one  fuit,  where  they 
were  fo  fimilar  as  not  to  change  the  nature  of 
the  aftion:  Therefore,  two  judgements  may  be 
joined  in  the  fame  writ  of  error,  they  being  ren- 
dered on  fimilar  fuits,  and  founded  on  the  fame 
principles.  In  the  prefent  cafe,  the  fame  pro- 
cefs  would  have  been  ufed,  to 'bring  the  validity 
of  each  judgement  in  queflion. 

The  court  eftablifhed  the  writ ;  and  in  nulla 
ejl  erratum  being  then  pleaded,  the  judgements 
of  the  court  of  common  pleas  was  affirmed. 

By  THE^CouRTi -No  error  appears  from 

the  face  of  the  proceedings.  The  court  of  com- 
mon pleas  were  authorifed  by  the  ftatute,  in 
cafe  it  appeared  to  them  that  the  plaintiff  in  the 
a6lions  had  refided  within  the  enemy's  lines  in 
the  courfe  of  the  late  war,  to  take  up  the  notes 
in  equity,  and  make  fuch  defalcations  from  the 
intereft  or  principal  as  the  circumftance  of  the 
cafe,  in  their  judgement,  fiiould  require  :  And 
it  appears  by  computation,  that  they  did  make 
a  defalcation  to  the  amount  of  the  intereft ;  and 
it  doth  not  appear,  that  the  circumftances  of  the 

cafe 


LilliC: 


County  of  New-London,  Sept.  Term.  163 

cafe  required  a  further  defalcation  in  equity  to     ^Tg5^ 
be  made ;  for  it  doth  not  appear  what  the  parti-     ==L=^ 
cular  circumftances  were.     The  ftating  there      Powers 
made  by  the  defendant  in  his  plea,  was  denied     again  a 
by  the  plaintiff;  and  this  court  cannot  go  out  of 
the  proceedings  to  enquire  after  fa8:s ;  nor  doth 
a  recital  of  certain  depofitions,  faid  to  have  been 
read  in  the  cafe,  enable  this  court  to  determine 
how  the  fa8;s  and  circumftances  were,  upon  the 
whole  evidence. 

Note. — Chief  Juftice   Law   exciifcd  hwifelf 
Jrom  judging  in  this  cafcy  one  of  the  parties  heing:^ 
his  tenant. 


Sholes  againji  Stoddard. 

MOTION  was  made  in  court  for  a  new 
trial,  and  it  was  faid  by  one  of  the 
Judges^  that  if  the  motion  be  made,  and  re- 
duced to  writing  the  fame  term  the  firft  trial- 
is  had,  it  is  fufficient  notice  to  hold  the  adverfc 
party  to  appear  and  anfwcr :  But  the  motion 
was  continued  to  next  term,  that  notice  might 
be  given  ;  and  the  court  refufed  to  (lay  cxe-^ 
cution  in  the  mean  time. 


MUMFORD   agaiTijl  AvERYo    ,  KeCiowo'i 

TTTTO  o-  r  c  account  Avill 

HIS  was   an-  action  of   account,  tor  two  lie  in  every 

hundred' pounds,  lawful  money,  in  fpccie,  "[roJ^^i;^^^' ^^ 

and   two  hundred  pounds,   fterling  money,  in  received 

bills  of  exchange;  which  (it  was  faid)   the  de^  Jhenfe  o^f 

fendant  received  of  the  plaintiff  at  Nevz-York,  aaoth.r,d'- 

by  the  hand  o{ Jacob  Goodwin,  to  bring  to  the  bfofa^thi'd 

plaintiff  at  Norwich,  and  render  his  account,  penontobc 

W2  After  ctSr' 


164  County  of  New-London,  Sept.  Term* 

""^iTsGi         After  a  verdi6;  for  the  plaintiff,   Mr.  Halfey 

■ =     moved  in  arreft  of  judgement,  for  the  infufH- 

Mumford    cicncy  of  the  declaration. 

agatnjl  -pj^g  exception  taken  was,  that  account  would 

^*      not  lie  for  a  fum  certain — for  a  fum  of  money 

received  only  for  the  purpofe  of  conveyance,, 

as  in  the  prefent  cafe  ;  but  that  aflUmpfit  is  the 

proper  action.  But, 

By  the  whole  Court. The  action  o£ 

account  will  lie  in  every  cafe  where  a  perfon 
has  received  money  to  the  ufe  of  another,  ef- 
pecially  if  it  be  received  of  a  third  perfon  to  be 
delivered  over :  And  although  affumpfit  may  be 
brought,  a8:ion  of  account  is  the  moft  favour- 
able for  the  defendant. 


Wetmore  ^^^/?2/i?  Woods  ridge. 

^•rloiifor  T^HIS  was  an  affumpfit,  in  which  the  plaia^- 
audtosin  X  tiff  declared,  that  the  defendant  received 
onthe'"^**  of  him  fuudry  articles  of  merchandize,  which 
ground  hac  j^^  promifed  to  difpofe  of  to  the  ufe  of  the  plain- 
fta-  tia!iy  tiff,  and  account  with  the  plaintiff  therefor  w4ien 
an  adion  of  j-equeftcd  :  That  the  defendant  had  difpofed  of 
over  ruled  the  articlcs,  but  retuiea  to  account, 
fey  thecoun,       rpj^^  general  iflue  was  pleaded,  and  a  verdi6l 

for  the  plaintiff. 

Mr.  R.  Gnjwoldy  for  the  defendant,  moved 

in  arreft  of  judgement ; — 

1.  For  the  infufhciency  of  the  declaration  ; 

2.  That  the  iffue  joined  is  immaterial : 

3.  That  the  verdi8:  finally  determines  the 
damages  in  the  action,  whicii  is  in  fubOance  an 
adion  of  account,  and  the  party  is  deprived  of 
a  hearing  before  the  aaditors.-** JBut, 

Br 


County  of  New-London,  Sept.  Term. 


Court. 


■The  declara- 


By  the  whole 
tion  ftates,  that  the  defendant  received  certain 
goods  of  the  plaintiff  to  fell  for  his  ufe,  and  ao- 
count;  and  in  conlideration  thereof  promifcd 
to  fell  them  for  the  plaintiff's  ufe,  and  to  ac- 
count with  him ;  which  he  has  failed  to  do,  to 
the  plaintiff's  damage.  Sec.  The  defendant  has 
taken  iffuc  on  the  promife  ;  which  put  the  whole 
declaration  on  proof,  and  the  iffue  is  found  a« 
gainfl  him. — He  cannot  therefore  now  fay  the 
iffue  is  immaterial,  nor  avail  himfelf  of  any  in- 
formality or  furpluffage  in  the  declaration. — 

Whether  the  defendant  might  have  taken  iffue 
in  a  different  manner  ;  whether  it  would  have 
been  fufhcient  for  him  to  have  plead  that  he 
was  not  receiver  (as  his  counfel  contended)  and 
thereby,  in  cafe  the  iffue  had  been  found  againfl 
him,  have  let  himfelf  in  to  account  on  his  oath, 
according  to  the  provifion  of  the  ftatute,  is  not 

neceilary  to,  determine. The  motion  in  ar- 

reft  is  therefore  infufricicnt. 

The  defendant's  counfel  then  made  a  written 
motion  for  the  appointment  of  auditors,  on  the 
ground  that  theadion  was  fubftantially  an  ac- 
tion of  account,  and  that  the  plaintiff  fhould 
not,  by  changing  his  action,  deprive  the  defen- 
dant of  his  legal  right  to  difclofe  on  oath  the 
difpofition  of  the  plaintiff's  property,  and  to 
fliew  that  he  was  not  in  arrear. 

But  the  motion  was  over-ruled  by  the  courts . 
on  the  ground  that  there  was  a  promife  to  ac^ 
count,  and  the  plaintiff^ had  his  ekftion  to  bring, 
aliumpfit  or  account. 


165 

Wetmore 

agalnft 
Wood- 
bridge, 


Bellows 


66 


County  of  New-London,  Sept.  Term. 


1786, 


Ic  is  good 
caufc  r  r  a 
challenge, 
thar  a  juror 
now  Tmpa- 
nelledvas 
on  the  jury 
vrher  v^c 
c  a  life  was 
tried  in  the 
lower  courr, 
butnotfiiffi* 
cient  caufs 
to  arrcft 
judgement  - 
after  verdi^, 


Bellows  againjl  Williams  and  Gallup, 

THIS  was  an  aftion  of  trover,  in  which  the 
defendant  moved  in  arreft,  after  a  verdict 
was  found  for  the  plaintiff,  becaufe  one  of  the 
jurors  who  tried  the  caufe,  alfo  fat  upon  the 
trial  of  the  fame  caufe  before  the  lower  court. 

' ■ But, 

By  the  whole  Court. Though  the  ex- 
ception to  the  juror  would  have  been  good  up- 
on a  challenge,  it  is  now  too  late.  The  party 
having  waved  it  then,  though  information  of 
the  facl  was  before  him  from  the  copies^  he 
ihall  not  take  advantage  of  it  afterwards  to  fet 
afide  the  verdift.  It  does  not  difqualify  a  ju- 
ror that  he  has  once  before  tried  the  caufc, 
if  the  parties,  notwithftanding,  agree  to  him ; 
which  they  implicitly  do,  unlefs  they  challenge- 
him. 


The  drawer 
of  a  bill  or 
ordcrciinu'^t 
be  awi  nefs 
to  prove  ei- 
ther the  pay- 
ment or  ac- 
ceptance of 
ic. 


Huntington  againjl  Champlin* 

ERROR  from  the  court  of  common  pleas. 
Huntington  brought  his  a6lion  againft 

Champliny  on  a  promifTory  note.  Iffuc  was 
joined  on  the  plea  of  full  payment.  On  the 
trial  of  the  cafe,  one  Thomas  Adams  was  produ- 
ced as  a  witncfs,  by  the  defendant,  to  prove  the 
payment — He  teftified,  that  fome  time  before 
the  inftitution  of  this  fuit,  he  drew  an  order 
upon  the  plaintiff,  in  favour  of  faid  Champliny  to 
the  amount  of  the  debt  contained  in  the  note. 
That  the  order  was  prefented  to  Huntington, 
and  by  him  accepted  in  payment. 

There 


County  of  N-Ew-LoNDOisrs  Sept.  Term^ 

There  was  no  other  evidence  offered;  and 
the  plaintiff  objeBcd  to  the  admiiTion  of  this 
witnefs,  fuppofing  him  diredly  interefted  to 
prove  the  acceptance  of  his  own  order,  and  a- 
void  a  fuit  from  Champlin  on  the  protcft,— But, 
by  the  court  of  common  pleas,  the  objeS:ion 
was  over-ruled,  the  witnefs  admitted,  and  judg- 
ment rendered  for  the  defendant. 

The  plaintiff  filed  his  bill  of  exceptions,  and 
the  judgement  was  reverfed. 

By  Dyer,  Pitkin  and  Ellsworth,  Judges 
— The  drawer  of  a  bill  or  order,  cannot  be  a 
witnefs  to  the  acceptance  of  it,  becaufe  he  hath 
an  intereft.  If  it  is  accepted  and  paid^  he  there- 
by recovers  his  effefts  out  of  the  hands  of  the 
payor,  or  obtains  a  credit  from  him  y  and  at 
the  fame  time  difcharges  himfeif  of  a  debt  or 
duty  to  the  payor,  or  charges  him  in  debt : — » 
And  if  it  is  not  accepted,  and  it  be  drawn  as  is 
cuftomary,  for  a  valuable  confideration,  the 
drawer,  befides  the  lofs  of  credit,  becomes  im- 
mediately liable  for  the  payment  of  it  himfeif. 
In  either  cafe  the  drawer's  intereft  is  apparent. 
That,  in  which  it  is  the  leaft  concerned,  is  in 
the  transfering  a  debt  due  to  him  from  one 
pcrfon  to  another  ;  but  his  own  oath  cannot  be 
fufficient  for  this.  Further,  as  the  acceptance 
of  a  bill,  though  not  paid,  binds  the  acceptor, 
and  an  aftion  lies  againft  him  for  the  holder ; 
it  is  only  for  the  drawer  to  pafs  his  bills,  as  ac- 
cepted for  payment,  and  fwear  to  the  accep- 
tance when  called,  if  this  is  admiffible  for  proof; 
and  he  may  force  a  credit  from  any  one  he  fees 
fit  to  draw  upon,  and  to  any  amount — which 
would  open  a  very  dangerous  door.  The 
drawer,  therefore,  of  a  bill  or  order,  cannot 
be  a  witnefs  to  prove  either  the  payment  of  it^, 
or  the  acceptance  for  payment ;  and  the  wit- 
nefs adduced  in  the  court  of  common  pleas,  to 

prove 


i68  County  of  New-London,  Sept.  Term. 

1785!     pi'o^'<^  the  acceptance  and  payment  of  the  or- 
— - — =     der  in  the  prcfent  cafe,  was  iHadmiffible,  being 
Huftting-    the  drawer  of  it,  unlefs  there  were  fome  fpe- 
^^^        cial  circumftances  in  the  cafe  to  take  it  out  of 
Chfoman    ^^^  rcafon  of  the  connmon  rule;  but  none  fuch 
are  dated,  nor  are  we  to  prefume   them,   be- 
caufe  then  the  bill  of  exceptions  doth  not  con- 
tain a  full  and  fair  ftating  of  the  cafe. 

Judge  Sherman,  diJJ'enting, It  doth  not 

appear  to  me,  that  the  judgement  complained 
of  is  erroneous. — A  bill  of  exceptions  was  firft 
introduced  in  England  by  the  ftatute  of  Weft- 
minfter.'  It  has  very  lately  been  adopted  here, 
without  any  flatute  to  authorife  and  regulate  it, 
on  the  fuppofed  reafon  of  the  cafe.  ^  Within 
the  compafs  of  my  knowledge,  there  has  not 
occurred  more  than  two  or  three  inftances  of 
writs  of  error  being  brought  on  bills  of  excep- 
tions. I  fliall  not  quellion  the  validity  of  the 
practice,  it  having  been  heretofore  admitted; 
but  only  obferve,  that  the  party  who  takes  the 
exceptions,  muft  be  prefumed  to  (late  them  as 
ftrongly  in  his  own  favour  as  circumftances 
^  will  admit ;  .therefore,  every  intendment  which 
can  fairly  be  made  confident  with  his  ftating, 
fhould  be  in  fupport  of  the  judgement ;  as  the 
court  before  whom  the  trial  was,  muft  be  fup- 
pofed to  be  fully  acquainted  with  all  the  cir- 
cumftances. 

In  this  cafe,  the  witnefs  teftificd„  that  he 
>drew  an  order  on  the  plaintiff,  in  favour  of  the 
defendant,  for  the  fum  of  the  note  on  which. 
Sec.  (being  7/.  145.  P^d,)  which  the  plaintiff  ac- 
cepted in  fatisfaftion  of  the  note.  He  does  not 
fay,  whether  the  order  was  drawn  for  value  re- 
ceived or  not ;  fuppofc  it  was  for  value  re- 
ceived, the  non-acceptance  of  it  would  fubjeft 
the  witnefs  to  repay  the  fame  to  the  defendant. 
If  it  w^as  not  accepted,  he  became  liable  to  pay 

it 


County  of  New-London,  Sept.  Term.  169 

it  to  the  other  :  Therefore^  the  whole  amount     "^Tg^T 
of  the  intereft  of  the  witnefs  in  the  cafe,  was    -===^. 
to  have  his  eledion  which  party  he  fhould  be    Iiundng. 
accountable  to  for  that  fmall  fum;  for  he  cer-        ^^^ 
tainly  muft  be  accountable  to  the  one  or  the  chioi'-'iin. 
other;  but  if  the   order  was  not  for  value  re- 
ceived, and  was  not  accepted,  he  would  not  be 
chargeable  to  either.     There  is  nothing  dated 
as  to  the  ability  or  inability  of  the  witnefs,  or 
either  of  the  parties,  to  make  pa.yment. 

It  is  a  general  rule  of  the  common  law,  that 
no  perfon  fhall  be  a  witnefs  in  favour  of  his 
own  intcreft;  but  when  he  teftifies  againil  his 
intereft,  he  is  the  ftrongcd  evidence  :  Yet,  from 
the  neceility  and  circumftancesof  fome  parti- 
cular cafes,  and  to  prevent  a  failure  of  juliicej 
intercfted  witneffes  are  admitted  by  the  com- 
mon law  as  well  as  by  feveral  ftatutes ;  as  in 
profeciitions  qiti  tarn  for  theft,  the  profecutor  is 
admitted  in  his  own  cafe,  as  to  the  iofs  and  pro- 
perty of  the  goods :  But  in  fuch  cafes  (it  is  faid 
in  the  books  of  the  law)  no  general  rule  can  be 
laid  down,  but  every  cafe  refts  upon  its  own 
particular  circumftances,  whether  the  intercit 
be  of  that  nature,  or  fo  confiderable,  as  by  pre- 
fumption  to  produce  partiality  in  the  witnefs  ; 
therefore,  the  admilTion  of  a  witnefs  in  fuch 
cafes  fettles  no  rule  for  the  admifTion  in  other 
cafes,  in  fome  refpeds  fimilar,  where  in  other 
refpefts,  circumftances  may  be  different :  So 
admitting  the  witnefs  to  teftify  in  the  prefent 
cafe,  on  a  linall  order  negociated  among  neigh- 
bours would  be  no  authority  for  admitting  the 
drawer  of  a  foreign  bill  of  exchange  to  teftify 
to  the  acceptance  of  it,  where  the  non-accep- 
tance might  fubje6l  him  to  large  damages  and 
intereft.  In  further  illuftration  and  confirma- 
tion of  thefe  principles,  fee  the  foUowincr  cafes 
in  Sirange's  Reports — Bronfoiiws,  Avery,  507 — • 
X  Martin 


^^o  County  of  New-London,  Sept.  Term. 

178^     ^^^'^^^'^  ^^'  Sorrel,  647 — Lockhart  vs.  Gorham, 

=—     — ^     35 — Hawkins  vs.  Perkins,  406 — Ball  vs.  Bojl^ 

Hunting-    xoick,  575 — No7xot  VS.   Orcot,  650 — Lcxois  vs. 

ton        pQg^  g^^ — 2?^^  vs.  Robbins,  1069. 
nl^Z^'^'v.        Caies  where  witnefies  teftificd  againft  their 
intereit — See  Strange,  4,^0 ^  Atwood  vs.  i><rw^ — 
Cowper,  70,  71,  Butler  vs.  Cook — r2  £or^  i^^jy- 
won^/,  1008. 

Note.— -jyie  Chief  Juftrce,  Law,  excufed  hini" 
[elf  Ji'07n  judging  in  this  cafe,  one  of  the  parties 
'being  his  tenant* 


-Champion  againft  Mum  ford  and  Others^ 

ACTION  on  promifTory  note,  firft  brought 
before  the  city  court  in  Norwich,  and 
came  to  this  court  by  appeal. 

The  declaration  avers — **  That  the  defen^ 
"  dants  were  merchants  in  company,  by  the 
**  name  and  firm  of  Mumford  and  Rodmaii,  and 
"  made  contracts,  and  figned  themfclves  by 
"  that  name  :  That  on  the  30th  day  of  June, 
"1786,  the  defendants,  by  a  certain  writing 
^*  or  note,  under  the  hand  of  Daniel  Rodman^ 
"  figning  for  himfelf  and  the  other  defendants, 
**  by  faid  name  of  Muviford  and  Rodman,  pro- 
"mifed,  &c.'' 

The  defendants  pleaded  in  abatement,  that 
the  note  on  which,  &c.  is  dated,  and  was  in  fa6l 
made,  figned,  executed  and  delivered  to  the 
plaintiff,  at  New-London,  without  the  limits 
and  jurirdi6iion  of  the  city  of  Norwich. 

2.  That  before  the  inftitution  of  faid  fuit, 
the  debt  contained  in  faid  note  was  attached  by 
writ  of  foreign  attachment,  in  favour  of  John 

Clark, 


CotJNTY  OF  New-London,  Sept.  Term.  171 

Clark,  of  the  city  of  London,^  in  the  kingdom     "^{^^^ 
of  Great-Britain,  againft  the  plaintiff,   Geary,     ===== 
and  others,  and  is  holden  to  refpond  the  judge-  Champion 
ment  that  ftiall  or  may  be  rendered  on  faid  fuit,     ^g^i^i/^^ 
which  is  ftill  pending.  ^''^^;^^ 

The  plaintiff  replied — That,  although  the 
note  was  dated  in  the  city  of  New-London, 
yet  it  was  delivered  in  the  city  of  Norwich  ;  and 
that  Thomas  Mumford,  Efq.  one  of  the  obligors, 
was,  at  the  time  of  the  contra8;,  and  ftill  is,  an 
inhabitant  of  the  city  of  Norwich;  and  there- 
fore the  city  court  hath  right  to  hold  plea  there« 
of. 

2.  The  writ  of  foreign  attachment,  in  favour 
of  faid  Clark,  was  ferved  upon  the  defendants^, 
on  the  10th  day  of  June,  1786  :  That  faid  note 
was   given  to  the  plaintiff,  in  difcharge  of  a 
debt  due  to  the  plaintiff,  from  Ebenezer  FrcJL^  . 
more  than  ten  days  after  the  fcrvice   of  faid  ^ 
Clark's  writ  w^as  completed  :  That  it  was  not  a 
debt  due  from  the  defendants  to  the  plaintiff^  , 
at  the  time  of  the  fervice  of  faid  Clark's  writ^  . 
and  therefore  not  attached  thereby. 

The  defendants  rejoined- — That  the  note  was- 
given  in  difcharge  of  a  book-debt,  due  from 
the  defendants  to  the  plaintiff,  long  before  faid 
writ  of  foreign'  attachment  was  ferved,  and  for 
^o  other  confidcration  ;  and  concluded  by  tra~ 
verfmg  the  replication— on  which  ifliie  was 
joined. 

A  verdiB;  was  found  for  the  plaintiff,  and  ^ 
Mr.  R,  Grifwold  moved  m  arreil  of  jiidgemcntj  . 
for  the  iniufficiency  of  the  declaration  ;  and    . 
that  the  iffue  joined  is  immaterial,  and  a  depar- 
ture from  the  declaration. 

He  contended — That  the  declaration  dates, 

that  Daniel  Rodman,   one  of  the  defendants,, 

figned  the  note,  and  al ledges  an  exprels  pro- 

mifc  by  the  other  defenclants ;  but  that  the 

X  2  vu'oniirc- 


Mnmford, 


172  County  of  New-London,  Sept.  Term. 

~~og^     promife  or  liability  of  the  other  defendants  (if 

___/ — 1     any)  can  be  no  more  than  an  implied  promife. 

Champion   or  promife  arifmg  in  law;  and  fo  ought  the  de- 

figainj}^     claration  to  have  been.     The  note  declared 

upon  is  not  alledged  to  have  been  executed  by 

more  than  one  of  the  defendants,   or  that  the, 

others  were  privy  to  it ;  therefore,  it  is  not  the 

acl  of  the  other  defendants,  and  they  cannot  be 

obliged  by  it. 

2.  The  iffue  joined  does  not  determine  the 
merits  of  the  caufe  :  It  is  only  whether  the  note 
was  delivered  within  the  city  of  Norwich,  and 
whether  the  confideration  cxifted  as  a  debt  from 
the  defendants  to  the  plaintiff,  at  the  time  of 
the  fcrvice  of  the  writ  of  foreign  attachment — 
both  of  which  are  immaterial  fads. 

But  the  motion  was  over-ruled :  For, 
By  the  Court. — The  declaration,  though 
loofe  and  informal,  hath  fubftance  fufficicnt, 
after  verdift,  to  found  a  judgement  upon. — 
There  is  a  note  recited^  and  an  averment,  that 
the  defendants  v/erc  holdcn  thereby  for  the 
performance  of  the  undertaking  herein  expref- 
fed — of  which  they  failed.  It  is  objc6ied,  in- 
deed, to  the  note,  that  it  was  figned  by  only 
one  of  the  defendants,  and  could  not  be  the 
a£l,  or  binding  on  both :  But  a  note,  executed 
by  one  joint  trader,  in  his  own\iamc,  and  that 
of  his  partner,  or  by  thej^rw  of  the  company^^ 
in  the  courfe  of  their  bufinefs,  as  in  this  cafe, 
is  good  againfl  both,  according  to  the  cuftom  of 
merchants,  and  purfuant  to  the  implied  power 
he  hath  from  the  nature  of  the  cafe,  to  contrail 
for  and  bind  the  company;  and  fo  the  point 
hath  been  twice  recently  adjudged — Barlow  vs. 
\nte.  145.  Hdmes  and  others — and  Siorer  vs.  Hinkley,  ^ 

As  to  the  ilfue  not  being  material,  it  has  ne- 
gated all  the  matter  pleaded  in  abatement;  nor 
is  it  a  departure  from  the  declaration,  though  it 

has 


County  of  New-London,  Sept.  Term,  173 


has  well  afcertained  what  was  there  left  doubt-  ^^35^ 
ful,  viz.  That  the  caufc  of  action  arofe  infra  ===== 
jurifdiHionem  curios*  -  Champion 

"^       -^  againji 

Munsford, 


Snow 


xy4  "        Co^i^'tv  OP  WiNDi^AM,  November  Term^ 

.«= Snow  and  Others  againji  Antrim. 

6now,  &c.  npHE  defendant,  in  this  cafe,  was  under  the 
^HuTm.  ^^^^  ^^  ^  confervator.— His  counfel,  the 

laft  term,  pleaded  in  abatement,  that  the  con- 
fervator v/as  not  notified  of  the  fuit.  The  court 
refufed  to  abate  the  procefs ;  but  ordered  the 
aftion  continued,  that  the  confervator  might 
be  notified.  The  plaintiffs  took  out  a  citation 
for  that  purpofc,  but  through  miilake  it  was 
not  ferved  but  a  few  days  before  the  feilion  of 
€ourt. 

Mr.  Dixon  now  moved,  that  the  aftion  might 
fee  erafed  from  the  docket,  becaufe  the  confer- 
vator had  not  been  legally  notified  of  the  fuit^ 
agreeably  to  the  order  of  court  laft  term. 

Mr.  Chandler  objeded,  that  the  law  does  not 
require  the  fame  time  to  be  obferved  in  the 
fervice  o£  fuch  citation,  as  in  cafe  of  original 
procefs. 

By  the  Court. This  cafe  is  different 

from  an  original  procefs.  The  a6lion  is  well 
in  court,  and  ought  not  to  be  difcontinued. — 
If  the  confervator  has  had  reafonable  notice^ 
it  is  all  the  law  requires ; — if  the  notice  has 
been  too  Ihort  for  him  to  be  fully  prepared  for 
trial,  the. court  will  grant  longer  delay  for  hiin^ 
to  make  further  preparation. 


Hamlin  againji  Fitcpi. 

HIS  was  an  a8:ion  upon  a  joint  and  feve- 
ral  obligation,  given  by  the  defendant 
and  one  V/illiam  Ca7npbelL — On  trial  of  the 
caufe,  witncffes  were  offered,  to  prove  what 

CamfbcH) 


T 


County  OP  WiNDHAMj  Nov»'Term,  175 

Campbell,  the  other  obligor,   not  joined  in  the     """^^^ 
fiiit,  though  equal  in  intercd,   had  faid  againft     =:=^=i 
himielf,  refpetling  the  caie,  fincc   the  obiiga-     Hamlin 
lion  was  given.  But,  "J-'^^^^ 

By  the  Court. It  is  not  admifiible —      ^"^^' 

Agreeably  to  the  later  refolutions,  an  interelted 
perfon  may,  if  he  pleafe,  be  let  in  to  teftify  a- 
gainft  his  intcrcil;  but  the  hcarfay  or  coisfef- 
lion  of  no  perfon  can  be  admitted,  unlefs  he  be 
a  party  to  the  fuit. — -2  Barns,  436^  Hcmmings  ^ 
Ys, -RoHnfon> 


Chappel  and  Others  againjl  Brewster, 

ACTION  of  diffeizen.— The  general  tfTue  f/jj^[^\*^ 
being  pleaded,  was  joined  to  the  court.     lo'n^Noah/^ 
The  cafe  yms~Cakb  Chappel  died  the  14th  hetffor-^^^ 
of  March,  1733,  and  his  laft  willy  among  other  ever, 
things,  contained  the  following  devife  of  the  a^'oi^ce^ef- 
land  in  qucftion,  viz,-—^*  The  remaining  part  tatc  in  the 
**  of  faid  farm,  I  give  and  bequeath  to  my  well  d€vifee!f* 
"  beloved  fori  Noah^  and  his  male  heirs  forever ; 
^*  fo  that  it  may  remain  in  the  name  of  the  Chap--  : 

*^  pels  forever,' *•-— Noah,  the  dcvifee,  had  three 
fons,  viz.  Noahy  Andrew^  and  Simeo%  and  died 
inteflate :  Thofe  three  fons  conveyed  their  fe« 
veral  rights  to  Jojhua  Chappel^  and  his  heirs, 
with  covenants  of  feizin  and  warrantee;— 
Jojhua  conveyed  to  his  daughter  Abigail,  wife 
of  Ichabod  Bofworth  5— on  the  30th  of  Decem- 
ber, 1773,  Bofworth  and  his  v/ife  conveyed  to 
the  defendant.— -/inirew  Chappel  died  with- 
out iflue ;— Simeon  is  (till  living»-—Noah  Chnp^ 
pel,  the  2d,  died,  leaving  two  fons,  Noah  and 
Ainazialh  the  prefent  plaintiffs,  who  claim  the 

feizia 


176 

Chappcl, 

Ggainft 
Brewftir. 


CouKTY  o?  Windham,  Nov.  Term. 

feiziti  and  pofleflion  of  twenty-one  acres,,  par- 
cel of  the  land  devifed  as  aforcfaid. 

Mr.  Larrabee  and  Mr.  BiJJely  for  the  plain- 
tiffs,  contended — That  the  devife  created  an 
eftate  in  fee-tail  to  male  general;  and  that  nei- 
ther of  the  donees  in  tail  have  right  to  alicne 
longer  than  for  his  own  life:  That  the  late  fta- 
tute  of  this  ftatc,  rcfpe6lirig  limited  eftates,* 
cannot  have  a  retrofpedivc  view ;    it  can  only 

operate  in  futuro. All    eftatcs  iierctofore 

created,  muft  continue  to  exiil  according  to  the 
condition  annexed,  or  the  will  of  the  donor ; 
and  therefore  not  aife8;ed  by  the  ftatute. — En- 
tailments were"  admitted  by  the  common  law 
of  England  antecedent  to  the  ftatute  de  donis, 
and  have  taken  place  iji  this  ftate  before  our 
late  ftatute,  as  part  of  the  common  law  of  the 
land. 

It  was  contended,  by  Mr.  Huntington  and 
Mr.  Tifdaky  for  the  defendant — That  if  the  ef- 
tate devifed  be  an  eftate  tail,  it  cannot  be  li- 
mited any  further  than  to  the  heir  of  the  firft 
donee ;  for  the  late  ftatute  is  not  an  alteration 
of  the  common  law  of  this  ftate,  but  is  merely 
in  confirmation  of  it;  and  therefore  has  the 
fame  operation  upon  entailments  created  before 
as  after.  The  feftatc  in  queftion,  then,  is  well 
conveyed  to  the  defendant. 

That  the  doftrine  of  fee-fimplc  conditional, 

and  fee-fimplc  abfolute,  as  they  were  antiently 

held  in  England,  and  entailments,  by  virtue  of 

.  the  ftatute  de  donis,  could  never  have  any  force 

in 

*"  By  the  ftatute  referred  to,  .  it  is  enafted— "  That  no 
^'  eftate,  either  in  fee-fimple,  fee-tail,  or  any  lefTer  eftate, 
'*  ihall  be  given  by  deed  cr  will  to  any  perfon  or  perfons, 
*•  but  fiich  as  are  in  being,  or  to  the  immediate  i/fue,  or 
**  defcendants  of  fuch  as  are  in  being  at  the  tirae  of  mak- 
«'  ing  fuch  deed  or  will  :  And  that  alleftates  given  in  tail, 
'*  ihall  be  and  remain  an  abfaliite  eftate  in  fee-fimple,  to  | 
'*  the  iffttc  of  the  firft  donee  in  tail." 


County  of  Windham,  Nov.  TerIu  i^^ 

■in  this  (late,  being  oppofed  to  the  nature  of    ^T|^ 
our  tenures,  and  againll  the  reafon  and  policy     sa^-i^^ 
•of  our  law.-— 2  Blackjlone's  Com*  no,  118.™    Chappeli 
2  Bacon's  Abrid,  79,  80.  ^'Y- 

That  cdates  tail  are  always  defcendable,  but  /'^tr/!^. 
confined  to  a  particular  line  of  defcent,  which 
is  not  the  prefent  cafe  1  but  the  eftate  devifed  is 
to  all  the  male  heirs  of  the  name  of  Chappel; 
therefore  it  cannot  be -made  to  take  effect  in 
the  latitude  here  contended :  And  that  eftatcs 
tail  are  always  divided  from  the  fee«fimple,  and 
there  always  is  a  reverfion,  until  the  particular 
eftate 'is  united  with  the  reverfion/  and  {o  again 
becomes  a  fee-fimplc  :  But  there  is  no  reverfioii 
or  remainder  in  this  cafe,  the  whole  eftate  con- 
tinues entire,  and  carries  the  fee-fimple  with  it; 
therefore,  this  is  not  that  kind  of  eftate,  whichj 
even  by  the  Britifh  law,  would  be  unalienable. 
i  Baco^fs  Abrid.  400. 

Judgement  was  for  the  defendant  by  the  whok 

C01L7'L 


Sterne  agaivji  Spalding. 

THIS  was  an  aBion  of  debt,  on  a  judgement  Adionof 
rendered  in  the  ftate  of  New~Hampfnire.  futgememc 
The  plea  was— That  the  original  writ  was  ™ay  '^e 
commenced  by  writ  of  attachment,  and  was  uhcrldiee 
ferved  upon  the  perfonal  eftate  of  the  defen-  f'  ^  fcrmec 
dant,  fuilicient  to  fatisfy  the  demand :  That  the  mtitil^Sl, 
eftate  attached  had,  at  ail  times,  been  ready,  and  «^i^" "sj^  i^-' 
might  have  been  taken  by  the  plaintift^'s  execu-  [ft^nvenul? 
tion,  in  the  ftate  of  New-Hampfhire  •   but  that  ^^^^"o^ 
Jie  nad  neglected  to  levy. 

This  was  traverfed,  and  iflue  joined  to  the 
court. 

Y  The 


Q 


178  County  of  Windham,  Nov.  Term. 

The  cafe,  from  the v^cvi dene e,  Appeared  to 
be — That  the  property  attached  was  principally 
Sterne      in  the  hands  of  the  defendant's  children,  and 
^^^/r?/^     by  them  claimed,  and  in  part  difpofed  of.     The 
r^a    ing.    execution  was  delivered  to  an  officer,  for  the 
piirpofe  of  being  levied  ;   but  he  could  not  find 
iafficient  eftate  to  fatisfy  the  execution,  which 
to  him  appeaTed  unincumbered.     The  defen- 
'dant  had  removed  into  this-^atc,  and  the  offi- 
•xer  delivered  the  execution  back  to  the  plain- 
tiff, without   making  any  return  or  -endorfe- 


ment. 


Mr,   Larrabce,^r  the  defendant. -The 

law  will  not  allo^^r  anions  to  be  multiplied  where 
a  remedy  can  be  otherwife  obtained.  In  this 
-cafe  there  was  a  judgement  rendered,  and  ex- 
ecution iffued  ;  but  it  <loes  not  appear  that 
judgement  cotild  not  have  been  fatisfied  within 
the  juriilditlion  wfeere  it  was  rendered.  There 
has  been  no  official  return  of  the  execution; 
therefore  the  prefumption  is  ftrongly  againft 
the  plaintiff.  But  admitting  the  defendant  had 
not  fufficient  property  in  the  ftate^  of  New- 
Hampfhire  to  fatisfy  the  judgement,  it  ought 
to  appear  by  an  official  return  of  non  eji  invcn- 
iuSy  before  an  adion  of  this  kind  can  be  fup- 
ported  ;  otherwife,  judgement  may  be  render- 
■ed  upon  judgement,  and  no  fatisfadion  fought, 
till  the  debtor's  whole  eftate  is  fwallowed  up 
in  coft.  This  kind  of  a6lion  is  founded  on  the, 
record  of  a  former  judgement;  it  ought,  there- 
fore, to  appear  from  the  recordi  not  only  that 
judgement  hath  been  obtained,  but  alfo,  that 
4egal  fleps  have  been  purfued  to  obtain  fatis- 
faftion;  which  is  not  the  prefent  cafe. 

Mr.   Chandlery  for  the  plaintiff. When  a 

judgement  has  been  legally  rendered,  it  be- 
•comes  the  higheft  evidence  of  a  debt ;  and  fo 
long  as  it  remains  unfatisfied,  the  creditor  has 

an 


CouNTYOF  Windham,  Nov.  Term^  179 

an  indifputabie  claim  on  the  debtor.     As  this     "^Tgg" 
is  an  iffue  joined  to  the  court,  I  fnall  take  up     .^^L— 
the  law  as  well  as  thefa6:: — Whenever  it  fohap-      Sterne 
pens,,  that  there  is  an  inconvenience  in  obtain-      ogah^ 
ing  fatisfadion  of  a  judgement  in  the  ordinary    -P'^^'^^^'^' 
way,  and  this  a61ion  will  afford  a  remedy,  it  Is 
undoubtedly  fuftainable.      A  variety  of  cafes 
may  be  fappofed  to  illuftratc  this  principle  ; 
and  it  is  clearly  confonant  to  the  general  poli- 
cy of  law  :  This  point  being  eftablifhed,  there 
can  be  no  difficulty.     The  debtor  has  become 
an  inhabitant  of  another  ftate,  the  debt  flill  ex- 
ills  againft  him,  and  execution  on  the  judgemerit 
cannot  extend  to  him.. .     The  officer  w^as  not 
bound  to  run  any  hazard  rcfpe61ing  the  eftate 
left  behind,    as   it  appeared  to  be   difputable  ; 
nor  can  there  be  any  neceffiiy  for  a  return  of 
non  ejl  invtntuSy  where  the  creditor   agrees  to 
take  back  the   execution:     The  return  would 
be  only  for  the  fecurity  of  the  officer  againii: 
the  creditor :.  the  debtor  is  not  affected  by  it. 

As^to  the  fa8:s  proved— there  appears  to  hav6 
been  uncertainty,  both  in  regard  to  the  right  of 
the  property,  and  the  quantity  left  behind:— 
The  creditor,  then,  is  certainly  excufable  for 
not  levying  his  execution,  and  might  well  elect 
his  more  fure  remedy  againii  the  body  of  the 
debtor,  or  other  property,  Which  could  iJOt  b? 
reached  by  that  execution. 

Judgement  was  for  the  plaintiff. 


;:i  01 


Pettis  agmnjl  Dixon. 

ACTION  of  debt  on  the  ftatute  againft  im~  ^^'fl,^^ 
porting  goods  into  this  ff:atc,  without  pay-  pcnaUhnre 
ing  the  duties.  t^o^n'^ruhr 

After  a  verdiQ  v/as  found  for  the  defendant,  jury  may  be 
a  queftion  arofe,  whether  the  jury  could  be  le-  f'coixiton.'' 
Y  2  gaily 


/ii'eraricn; 


"County  of  WiNDHARr,  Novr  Term. 

gaily  returned  to  a  fecond  confideration,  the 
action  being  founded  on  a  penal  ftatute.     But> 

Pettis  By  the   Court. This  is  an   a6lion  of 

gainfi  debt,  although  the  public  is  entitled  to  part  of 
the  recovery  :  It  is  treated  wholly  as  a  civil  ac- 
tion, and  came  up  here  by  appeal,  which  it 
could  not,  had  it  been  a  criminal  profecution^ 
therefore,  the  jury  may  be  returned  to  a  fecond 
con  fide  ration. 


Dixon 


Gilbert  againjl  Rider. 

THIS  was  an  a8:ion  of  trefpafs,  for  falfe  im- 
prifonment. — The  general  iffue  pleaded. 
The  cafe  was  this — The  plaintiff  w^as  an  in- 
habitant of  Mansfield,  in  the  county  of  Wind- 
ham;  the  defendant  was  an  inhabitant,  and 
conftable,  of  Willington,  in  the  county  of 
Hartford  :  He  had  in  his  hands  a  writ  of  exe- 
cution, againft  the  plaintiff  and  one  Marcy 
(who  was  alfo  an  inhabitant  of  Willington)  for 
twenty-three  fhillings,  debt  and  coft.  The  ex- 
ecution was  figned  by  a  Juftice  of  the  Peace, 
and  directed  to  the  conftables  of  Willington 
and  Mansfield.  Gilbert  being  at  Willington, 
the  defendant  levied  the  execution  on  his  body; 
he  then  tendered  to  the  officer  what  property  he 
poffeffed  in  Willington,  which  appeared  to  be 
probably  about  the  value  of  the  debt;  but  it 
was  rejeded  by  Rider y  as  being  infufficient. — 
Gilbert  then  propofed  to  go  quietly  to  Hart- 
ford goal,  if  he  might  be  permitted  to  pafs  in 
\\\Q  poji  roady  which  led  through  part  of  the 
county  of  Windham,  wathin  half  a  mile  of  his 
own  holife,  and  was  four  miles  fliorter  than  any 

other 


County  of  Windham,  Nov.  Term. 


181 


Other  rout  -,  The  defendant  fuppofed  he  had  no     "^Tgg^ 
right  to  take  him  out  of  the  county  of  Hart-     ==:=L==r~ 
ford  ;  therefore  refufcd  to  travel  the  poft  road.      Gilbert 
Gilbert  peremptorily  rcfufed  to  go  any  other      t??/^???/? 
way;   his  obftinacy  obliged  the  officer  to  bind      ^^^^^' 
him,  and  compel  him  to  go  by  force;— he  ufed 
no  greater  force  than  was  neceifary. 

Mr.  Larrabee,  for  the  plaintiff,  made  three 
points:-— 

1.  That  the  execution  could  not  legally  be 
levied  on  the  body  of  Gilbert  in  the  town  of 
Willington  :  That  the  property  of  the  debtor 
maybe  taken  v/herever  it  be  found;  but  the 
perfon  is  liable  only  in  the  town  where  he  re- 
iides.  The  law  requires  the  officer  firll  to  re- 
pair to  the  debtor's  place  of  abode,  and  there 
to  demand  fatisfa61ion  of  the  execution:  This 
could  not  be  done  in  the  prefent  cafe;  for  the 
debtor  lived  without  the  jurifdiftion  of  the  offi- 
cer.— The  execution  was  well  direcled  to  the 
defendant,  for  the  purpofe  of  taking  the  other 
debtor,  Ma7'-cyy  but  did  not  empower  him  to 
take  the  body  of  the  plaintiff; — therefore,  the 
arreft  was  illegal. 

2.  That  the  officer  deviated  from  his  duty^ 
in  not  going  the  ffiortell  rout  to  goal. 

3.  That  the  tender  of  property  clifcharged 
the  body,  and  the  defendant  was  a  trepaifcr,  for 
the  fubfequent  detention. 

Mr.  Swi/ty  for  the  defendant,  contended— 
That  the  Juftic'e  had  power  to  dire^l  the  execu- 
tion as  he  did;  and  it  being  fo  dire61ed,  the 
officer  was  bound  to  obey  :  That  he  appeared 
to  slBl  with  an  upright  intention  through  the 
whole  tranfaQ;ion,  and  in  no  inftance  ufccl  more 
force  than  neceffarily  refulted  from  the  plain-^ 
tiflF's  oppofition. 

As  to  the  2d  point. — It  does  not  appear  thai 
thedefendantwent  wantonly  out  of  his  road  wid] 

the 


^^       County  of  Windham,  Nov.  Term* 

~ij^.  the  plaintiff;  he  doubted  whether  he  might  Ic- 
=^=-^=  gaily  leave  his  own  county;  he  therefore  pur- 
Gilbert  iiied  the  fhortell  rout  within  it:  In  this  headed 
Sdwf      ^'^^^^  caution,  and  a  ftria  regard  to  duty. 

In  regard  to  the  3d  point. — Although  the 
property  offered  might  have  been  near  the  va- 
lue of  the  debt,  yet  there  was  not  the  remoteft 
probability  that  it  could  poffibly  have  raifed 
that  fum  when  fold  at  the  poll :  The  offjcer 
was  not  bound  to  take  eftate  when  tendered, 
unlcfs  there  was  a  reafonablc  profpe6i,  that  be- 
ing difpofcd  of  according  to  law,  it  would  pro- 
duce a  fum  fufficicnt  to  difcharge  the  debt ; — 
he  is  not  required  to  take  any  hazard  upon, 
himfclf. 

The  jury  found  a  verdicl  for  the  plaintiff; — 
"  on  which  the  court  delivered  the  following  opi- 

nions:— 

Law,    Chief  JuJlicCy    Sherman,    Pitkin,, 

and  E-LLs WORTH,  Judges y  agreed That  a 

Juftice  of  the  Peace  has,  by  law,,  a  right  to  if- 
fue  his  execution  through  the  ftate,  if  he  finds 
it  neccffary  to  give  it  effeO; ;  and  it  is  at  his 
difcretion.  Should  it  appear  that  an  execution 
was  directed  to  a  diftant  officer,  merely  to  vex 
and  opprefs  the  debtor,  it  might  fubjed  the 
authority  who  iffued  it  to  damages;  but  the 
officer  is  bound  by  his  precept,  unlefs  it  be  void 
on  the  face  of  it; — he  cannot  look  to  the  cir- 
cumftances  which  induced  the  direftion. 

As  to  the  property  tendered— it  was  not  ap- 
parently fufficient  to  difcharge  the  debt  and  in- 
cidental coft  ;  the  officer  was  not,  therefore, 
bound  to  receive  it.  It  is  undoubtedly  the 
duty  of  an  officer,  after  having  taken  the  body, 
to  allow  the  debtor  a  reafonable  opportunity 
to  produce  eftate,  which  appears  to  have  been 
done  in  the  prefent  cafe. 

As 


County  of  Windham,  Nov.  Term. 

As  to  the  road — the  offi<:er  is  not  always 
bound  to  take  the  moft  direS:  road  lo  prifon  ; 
he  may  apprehend  a  refciie,  and  it  is  at  his  dif- 
crction  what  rout  to  take,  fo  that  he  does  not 
go  a  great  way  round  about,  in  order  to  har- 
rafs  and  opprefs  the  debtor.  Here  the  devia- 
tion was  fmall  (if  any)  and  reafonably  account- 
zed  for. 

'  Judfre  Dyer,  dijfenting. — The  taking  of  the 
body  -does  not  dikharge  the  debt,  even  if  the 
debtor  dies  in  goal;  but  by  the  imprifonment, 
the  law  has  only  in  contemplation  to  compel 
the  debtor  to  do  juftice  tohis  creditor  fo  far  as 
he  is  capable.  Ail  laws, which  affe6l  the  liber- 
ty of  the  fubje6l,  ought  to  receive  the  mofh  hu- 
mane and  liberal  conilrutlion.  Let  us,  then, 
examine  the  circumftances  of  the  prefent  cafe, 
and  compare  thefe  principles,  which  cannot  be 
controverted  : — Here  was  an  execution  for  the 
trifling  fum  of  twenty-threejhillings,  (If  it  had 
been  to  a  very  great  amount,  where  the  credi- 
tor was  in  hazard  of  Ibfing  every  thing,  the 
reafon  and  nature  of  the  cafe  would  be  differ- 
ent.) This  execution  is  given  to  an  officer  in 
a  different  town  and  county  from  the  debtor's 
refidcnce,  by  which  he  is  taken  on  the  firft  no- 
tice abfent  from  home.  What  docs  he  do? 
He  delivers  to  the  officer  all  the  property  he 
has  in  that  fituation.  This  was,  prqbably,  e- 
"  nough  to  have  difcharged  the  debt,  but  it  does 
not  liberate  him;  he  is  compelled  to  goal. — 
Here  it  is  faid  the  officer  muft  run  no  hazard.—^ 
I  anfwer,  he  muft  a8:  reafonably ;  in  the  prcfent 
cafe  he  would  have  been  perfe6lly  fafe,  to  have 
accepted  the  eftate  offered  ;  he  could  not  de- 
termine with  certainty,  that  the  value  of  twen- 
ty pounds,  in  property,  would  produce  twenty 
Ihiilings,  when  difpofed  of  at  au8:ion,  as  the 
law  direfts ;  therefore,  he  muft  be  governed 

bv 


_i_786. 

Gilbert 
againjf 
Rider. 


Rider. 


184  CotJNTY  OP  Windham,  Nov.  Term.  " 

itSg'     ^y  ^^^  reafonable  appearance.      That  would 
=«-^-^     have  juftified  him  in  this  cafe. 
Gilbert         Mr.  Swift^  then  moved  in  arreft  of  judge- 
^.^j"-!^     ment ;  becaufc  one  of  the  jurors  who  tried  the 
caufe  had  not  taken  the  oath  of  fidelity  to  this 
ftate;  which  fad  was  unknown  to  the  defen- 
dant at  the  time  of  trial. 

He  fuppofed  the  office  of  juror  within  the 
ftatute,  which  enaQs — "That  all  members  of 
"  the  general  affembly,  and  all  officers,  civil 
.**  and  military,  and  freemen  of  this  ftate,  fliall 
"  take  the  oath  of  fidelity  to  this  ftate,  pre- 
**  fcribed  by  law  :  And  that  no  perfon  fliall  ex- 
"  ecute  any  office,  civil  or  military,  nor  vote 
*'  in  any  town,  fociety^  or  other  public  meeting 
"  appointed  by  law,  nor  plead  in  any  court 
*'  (except  in  his  own  cafe)  nor  fliall  any  male 
"  perfon  ad  as  executor  or  adminiftrator,  or 
**  guardian  to  any  minor,  until  he  fhall  have 
**  taken  the  oath  aforefaid."'' 

From  the  general  and  particular  terms  of  the 
Itatute,  he  urged — That  the  legiflature  muft 
have  intended  to  include*  jurors ;  and  that 
fuch  qualification  being  required  by  law,  no 
verditl  can  be  good  where  it  is  wanting.     But, 

By  the  v/hole  Court.-  If  to  lit  as  a 
juror,  is  to  execute  an  officty  within  the  meaning 
of  the  ftatute  (which  we  apprehend  not  to  be 
the  cafe)  yet  as  the  juror  was  not  challenged, 
though  the  faQ:  might  have  been  known  by  en- 
quiry of  him,  or  othcrwife,  the  exception  be- 
ing then  waved,  it  comes  too  late  after  ver- 
diS:.  The  exception  does  not  go  to  the  parti, 
ality  of  the  juror,  nor  affetl  the  obligation  be 
was  under  to  find  a  verdict  according  to  truth; 
.and  it  is  not  ftronger  than  the  want  of  a  free- 
hold, whjch,  though  a  ground  of  challenge, 
hath  been  repeatedly  adjudged  infufficient  af 
tet  yerdid. 

LOTHROJP 


CouKTY  OF  Windham,  Nov.  Term* 


E 


LoTHRo?  againjl  Ben i^i.T, 
RROR  from  a  decree  in  chancery.' 


Bemiet  brought  his  petition  to  the  court  of 
common  pleas,  fitting  as  a  court  of  chancery, 
{tating—- That  in  June,  1764,  faid  Lothrcp  jc-^ 
covered  a  judgement  againft  him  for  24/.  185. 
lid,  had  execution  granted  thereon,  and  de- 
livered to  Jabez  Huntington  (fincc  deceafed) 
who,  at  that  time,  and  until  the  year  1774,  was 
a  deputy-fhcrifF for  the  county  of  Windham: 
That  before  the  23d  day  of  February,  A.  D. 
1765,  the  petitioner  paid  the  fum  of  15/.  35.  8 J. 
to  faid  Lothropy  on  account  of  faid  judgement, 
by  colledions  upon  a  note  (the  property  of  the 
petitioner)  againft  Abfalom  Kingsbury y  which  Za- 
throp  received,  by  agreement  with  the  petiti- 
oner, to  be  applied  in  part  payment  of  faid 
judgement :  That  the  petitioner,  trufting  to  the 
integrity  of  Zo^^Aro/^,  relied  wholly  on  him  to 
endorfe  faid  fum  on  the  .execution,  according 
to  agreement,  which  he  did  not  do  ;  hoy/ever, 
he  informed  Hunti^igtony  the  deputy- fhcriff,  of 
the  matter,  in  confequence  whereof,  the  exe- 
cution remained  in  the  hands  of  Huntington 
until  his  death,  which  happened  in  the  year 
1782. 

That  the  petitioner  made  other  payments  on 
the  cxeeation  (the  laft  in  April,  1771)  amount^ 
ing  to  11/.  25.  i^d.  which  wasendorfedby  Eunt^ 
ingtoUy  and  verbally  acknowledged  by  him,  to 
be  in  full  of  faid  execution  and  officer's  fees ; 
and  he  retained  it  in  his  hands,  that  Lothrop 
might  endorfe  the  firft  mentioned  payment,  in 
full  fatisfaQion  and  difcharge :  That  Nathaniel 
WaieSy  Efq.  late  of  Windham,  deceafed,  was 
well  acquainted  with  all  the  aforefaid  tranfac- 
UQnSy  payments,  and  agreements.  After  the 
Z  death. 


■'■        ■: ■■  J, 

Lothrop 
againjl 


i86  County  of  Windham,  Nov.  Term. 

1786.     death  of  faid  Huntington,  Lothrop  obtained  the 

^ =     pofleffion  of  faid  execution,    which   he  held, 

Lothrop  without  mention  thereof,  till  after  the  death  of 
agniaji  !^^^^  Waks  (which  happened  in  the  month  of 
06lober,  1783) — That  Lolhrop  then  prayed 
out  an  alias  execution,  to  collc8:  faid  fum  of 
15/.  3s.  8i.  not  endorfcd  upon  faid  former  ex- 
ecution 5  which  alias'  execution  he  delivered  to 
a  dcputy-fhcriff,  and  the  fame  was  levied  upon 
the  perfonal  eftate  of  the  petitioner ;  and  the 
petitioner  gave  a  receipt  for  the  re-delivery  at 
the  time  and  place  of  fale  :  But  the  petitioner, 
knowing  he  had  once  fully  fatisfied  faid  exe- 
cution, did  not  re-deliver  faid  eftate  at  the  time 
of  fale;  and  the  flieriff  hath  commenced  a  fuit 
on  his  receipt,  which  is  now  pending. 

The  prayer  of  the  petition  was  for  relief 
againft  the  fuit  of  the  ftieriff ;  and  alfo,  againft 
any  future  proceedings  on  faid  execution. 

The  refpondent  anfwered — That  the  petition 
ought  to  be  difmified;  becaufe,  from  the  fa^ls 
ftated^  the  petitioner  has  ample  remedy  at  law. 

The  anfwer  was  adjudged  infufficient — and 
a  decree  paffed,  that  Lothrop  fhould  endorfe 
faid  execution  fully  fatisfied  ;  and  that  the  re- 
ceipt given  by  Bennety  to  the  deputy-fheriif,  for 
the  goods  taken  in  execution  (on  which  receipt 
a  fuit  w^as  pending)  be  deliveredto  Bennety  un- 
der the  penalty  of  thirty  pounds  ,-  and  that  the 
alias  execution,  and  all  proceedings  thereon, 
be  vacated  and  void. 

The  principal  exceptions  taken  to  this  de- 
cree, were, 

1.  That  it  requires  what  is  impoffible  for 
the  refpondent  to  perform. 

2.  That  it  fubjeds  the  deputy-fheriff  to  dif- 
advantage,  who  was  a  ftranger  to  the  petition, 
and  had  no  day  in  court  to  be  heard. 

3.  That 


Bennet. 


County  of  Windham,  Nov.  Term.  187 

3.  That  the  cafe   ftated  in  the  petition  is     ''''7^^ 
open  to  a  complete  remedy  at  law.  t^ — — ^ 

And  the  decree  was  reverfed.     For,  Lotlirop 

By  the^whole  Court. Chancery,  by      againfl 

the  ftatute  of  this  ftatc,  can  interpofe  only 
where  adequate  remedy  cannot  be  had  at  law: 
Here  remedy  at  law  might  have  been  had,  for 
ought  which  appears  from  the  ftating,  either 
as  to  the  faOis  to  be  proved,  or  the  manner  of 
proving  them.  Action  of  account  would  have 
lain  for  the  money  colleQcd  by  Lothrop^  and 
not  applied ;  or  the  execution  might  have  been 
relieved  againft,  by  audita  quosrela^  and  as  well 
after  its  levy  was  begun  as  before. 

2.  The  decree  is  contrary  to  the  courfe  of 
chancery  proceedings,  and  manifcftly  unrea- 
fonable  :  It  did  not  leave  it  optional  with  the 
petitionee  to  forego  the  legal  advantage  of  his 
judgement  and  execution,  or  pay  the  penalty  ; 
but  it  made  void  the  execution,  and  all  pro- 
ceedings thereon,  and  left  him  to  pay  the  pe- 
nalty of  30/.  befides,  unlefs  he  Ihould  get  up 
the  petitioner's  receipt  out  of  the  officer's  hands, 
which  he  had  no  power  to  do,  and  the  doing  of 
which,  as  the  other  parts  of  the  decree  were, 
was  of  no  confequence  to  the  petitioner-. 


Z  2  Bu 


LKLEY 


i88  County  or  Hartford,  Nov.  Term. 

a=  p  BULKLEY  agdinjl  EhDZKKlN   atldBlSSELL. 

where  a  npHE  declaration    fet  forth,    a  promiffory 

S'X."  1-     note,  dated  the   17th  day  of  Oaober, 

lureiy,  the  A.  D.  1782,  in  thefe  words : — "  For  value  rc- 

fiee^ior  **  ceived,  we,  Bela  Elderkin  and  Hezekiah  Bif- 

give  notice,  « I'cll^   proHiifc  to  pay  Francis  Bulkley^  within 

thing  ?efts  in  *'  thirty  days  from  the  date  hereof,  the  amount 

hsknow-  ^^  of  his  bills,  for  repairing,  flieathing,   caulk-. 

ledge  alone,         .  1   /      •  r        r  \        n  o    77  • 

mceffaryfor  *Mng,  and  fitting  tor  lea,  mtjloop  Sallys  upon 
the  o.hcrto  <t  ^1  anplication  of  John  Stanniford  and  Bela 
may  apply  "  Elderki^,  by  producing  the  Iccunty  ot  laid 
ff^rinforma-  cc  Stauniford  and  Elderkin.  and  deliverinpr  the 

tion,  ana  r-'ir*???  •  !•  in 

avail  him-  <«  fame  to  laid  Bulkley^  or  paying  him  tne  caiil 
lfai"by '^^"  "  within  thirty  days  from  faid  17th  day  of  Oc- 
pleading  "  tober,  1782.  Said  fecurity  to  be  made  pay- 
ipeciaiiy.  .^  ^^^^  ^^  demand,  with  intereft.''  And  the 
declaration  averred,  that  the  plaintiff  repaired 
thcjlo op  Sally,  caulked,  fheathed,  and  fitted  her 
for  fea,  antecedent  to  the  date  of  faid  note,  at 
the  inflancc  and  requeft  of  faid  Stanniford  and 
Elderkin,  the  owners  thereof;  and  that  in  re- 
pairing and  fitting  as  aforefaid,  the  plaintiff 
expended  to  the  amount  of  65/.  125.  10^.  law- 
ful money,  for  faid  repairs ;  and  that  his  bills 
amount  to  that  fum :  And  that  the  defendants, 
nor  cither  of  them,  have  ever  delivered  or  of- 
fered to  deliver  faid  fecurity  to  the  plaintiff', 
agreeably  to  the  tenor  of  faid  note  ;  nor  have 
they,  or  either  of  them,  ever  paid  the  money, 
&c.  ' 

On  general  demurrer  to  this  declaration, 
judgement  was  for  the  plaintifi^ 

By  the  whole  Court. The  only  ex- 
ception under  the  demurrer,  is,  that  the  plaintiff 
hath  not  averred  in  his  declaration,  that  notice 
was  given  to  the  defendants  of  the  amount  of  his 
demand  ;  But  that  is  not  ncceifary,  becaufe  the 

note 


County  of  Harteord,  Nov.  Term.  189 

note  declared  upon  was  for  the  payment,  ox  fur-     "^Tgf^ 
ther  fecurity  of  a  debt  then  due,  on  a  contraft     =r=4=:=i 
to  which  one  of  the  defendants  was  a  party,  and    Eaildey 
who  muft  have  been  prefumed  to  have  known      again]} 
the  amount  as  well  as  the  plaintiff;  cfpecially    ^^^^^^^^' 
as  the  undertaking,   on  the  part  of  the  defen- 
dants, was  abfolute  and  unconditional,  to  per- 
form the  promifc  v/ithin  a  certain  time ;  and  if 
they  wanted  any  information  from  the  plaintiff, 
it  was  their  duty  to  apply  for  it,  and  on  his  refu- 
fal,  they  might  take  advantage,  by  pleading  fpe-- 
daily. 


Williams  aguinjl  Miller  and  Joyce. 

THIS  was  an  adion  of  debt  on  bond.—  Tiie  sherifi- 
The  defendant  having  oyer,  fet  forth  the  t^J^;«abona 

.  to  feci!'"?  a.  • 

following  condition,  viz.—''  The  condition  of  gainftihe 
**  the   above  obligation  is  fuch  -,  that  whereas  hf/de'^jj^ 
"  the  faid  Ezekiel  Williams^   Efq.  fheriff,  as  a-  intheexecu- 
"  forefaid,  hath  now  deputed  the  faid  William  office"ofdL 
"  Joyce,  to  ferve  as  deputy- flier  iff  throlighout  puvshcrifFj 
''  the  county  of  Hartford,  and  to  execute  all  v^nSid 
^' lawful  writs.   Sec.    Nov/  if  the  faid  William  t«(cciirca- 
*'  Joyce  ftiall  faithfully  perform  faid  office,  and  Silt  oF 
*' duly  execute  all  lawful  writs  according  to  ^^^  ^^P"-y:» 
"  law,  and  ever  fave  harmlefs  and  indemnify  llanccTn' 
**  faid  fheriff,  his  heirs.  Sec.  from  all  cod  or  ^,^^^»^^^^ 
"  damages  whatever,  that  fliall  or  may  arife  by  pi^cTfoV" 
**  means  of  his  being  deputed  as  aforefaid,  then  "^^'"l'  ^^  . 

tc  ^1'  ^^'^'  1  •  1       o  -r-.  in.         ir.is  deputed 

this  obligation  to  be  void,  &c.     Dated  the  atthedatcof 
"  25th  day  of  Auguft,  1784."  thebond. 

The  defendants  then  pleaded— That  the  de«- 
putation  in  faid  condition  referred  to,  was  a 
deputation  for  fix  months,  from  the  21th  day 

of 


190  CouKTY  oT  Hartford,  Nov.  Term. 

"^itBK     ^^  ^^^^  Auguft,  and  no  longer;  which  was  in 
aE==b=:=     thefe  words  : — "  I  do  hereby  depute  and  fully 
Wiillams    "  empower  Mr.  William  Joyce,  of  Middletown, 
agai»jf      «  (July  to  fervc  and  return   all  lawful  writs,  in 
A^IIer,     u  ^^^  throughout  the  county  of  Hartford,  as 
"  the  law  direds,  for  the  fpace  of  fix  months 
"  from  this  date.     Given  under  my  hand  and 
"  office,  in  Hartford,  this  24th  day  of  Auguft, 
*'  A.   D.    1781.      Ezekiel  Williams^  Jheriff  of 
"  Hartford  county.'' -^—Kudi  that  faid   Williams 
hath  not  been  put  to  any  coft,   or  been  at  all 
damnified,  by  or  on  account  of  his  having,  de- 
puted the  faid  Joyce,  as  afore  faid. 

The  plaintiff  replied — That  true,  he  had 
given  the  faid  Joyce  a  deputation,  as  recited  in 
the  defendant's  plea,  as  a  mere  private  power, 
and  antecedent  to  the  date  of  the  bond  on 
which,  &c.  yet  long  before,  the  defendants  ap- 
plied to  the  plaintiff,  and  requeftcd  him  to  em- 
power faid  Joyce  as  his  deputy  at  large,  and 
unlimitedly  within  the  county  of  Hartford; 
and  to  induce  the  plaintiff  thereto,  faid  Miller y 
in  writing,  rcqucfted  the  plaintiff,  by  faid  Joyce^ 
in  thefe  words: — "  Middletown,  Auguft  21ft, 
"  1781,  Sir,  I  take  the  liberty  to  inform  you, 
"  that  a  ftieriff's  deputy  is  much  wanted  in  this 
**  part  of  the  county— and  fliould  you  think 
'*  proper  to  appoint  one,  would  recommend 
"  Mr.  William  Joyce,  of  this  town,  as  a  man 
"  exceedingly  well  qualified  to  difcharge  the 
**  office.  His  integrity  and  other  abilities,  you 
**  have  long  fincc  been  acquainted  with,  no 
**  doubt  much  better  than  I  am ; — but  fhould 
"  it  be  nepeffary,  and  my  bond  be  fufficicnt,  I 
"  am  ready  to  give  it,  and  am.  Sir,  your  hum- 

"  ble  fcrvant,  AJJier  Miller.'' That  in  con- 

fequcnce  of  fuch  application  and  requeft,  the 
plaintiff  took  and  received  the  bond  on  which, 
&c.  without  any  rcfpeCt  or  reference  to  faid 

writing 


i 


CoUNtY  OF  Hartford,  Nov.  Term:.  191 

writing  or  deputation  :   That  faid  Joyce  there-     ^"^"5^ 
upon  ferved  and  a6:€d  as  the  plaintiff's  deputy,     ====i 
within  faid  county,  for  more  than  one  year  af-    WillUms 
ter  the  date  of  faid  bond,   with  the  p,rivity  of     ^ff.'J"-^ 
faid  Miller y   who  employed  him  as  fuch  from        ^^^*'' 
time  to  time,  within  faid  term.     The   defen- 
dants, nor  either  of  them,  during  all  faid  time, 
and  until  the  date  of  the  plaintiff's  writ,   have 
never  intimated  or  gave  notice  to  the  plaintiff, 
to  recal  or  prevent  faid  Joyce  from  ferving  in 
faid   office  of  fheriff's  deputy,    or  that  they 
would  no  longer  be  holden  by  faid  bond,    or 
anfwerable  for  faid  Joyce^  according  to  the  te- 
nor thereof:  And  the  defendants  thereby,  and 
by  their  own  a8:  and  doings  (of  which  they  may 
not  take  advantage)  have  fubje^ted  the  plain- 
tiff and  his  eflate,  againfl  his  mind  and  will, 
and  without  his  privity  or  confent,   to  become 
aQually   liable  and  anfwerable  for  many  ne-, 
gleSs  and  misfeazances  of  faid  Joyce^  within 
the  time  aforefaid,   while  he  ferved  and  a6:ed 
as  the  plaintiff's  deputy  ; — and  efpecially   the 
plaintiff  hath  been  fued,  and  recoveries  had  a- 
'  gainfl  him,  as  ftieriff,    as   aforefaid,  by  Silas 
Kelfey^  of  Killingfworth ;    Stephen  Dudley^   of 
New-Haven,    and  others,  for  divers  fums  of 
money  due  to  them  on  executions  in  their  fa- 
vour, delivered  to  faid-^^^jvc*?  to  execute,  while 
he  a6ied  as  deputy  to  the  plaintiff,  and  which 
he  fuffered  to  expire  in  his  hands,   or  fo  con- 
du6led  therewith    as    to    fubjcQ:   the  plaintiff 
thereon;  all  amounting,   with  the  cofls,  intc- 
reft,  and  fees,  to  75/.  125.  7^.  and  the  plaintiff 
hath  a8:ually  been  compelled  to  pay  faid  fum 
out  of  his  own  eflate;  all   for  the  negligenc-c 
and  unfaithfulnefs  of  faid  Joyce,  in  the  execu- 
tion of  the  ofhce  of  deputy-fheriff  under  the 
plaintiff.     Of  all  which  the  defendants  have 
had  notice,  but  never  have  indemnified  and 

faved 


&c. 


192  Cdunty  of  Hartford,  Nov.  Terh4* 

^TtSg!  f^ved  harmlefs  the  plaintiff  from  faid  demands, 
ig=J=,^  according  to  the  condition  and  tenor  of  their 
Williams  bond,  and  the  true  intent  and  meaning  thereof. 
again  ft  The  defendants  rejoined- — That  though  true 
Kliller,  ^^  ^^j^  Miller  did  write  the  letter  before  recit- 
ed, addreffed  to  the  plaintiff,  yet  the  plaintiff, 
by  former  experience,  being  **  better  acquaint- 
**  ed  with  the  integrity  and  other  abilities''  of 
faid  Joyccy  than  faid  Miller  Vas,  did  not  think 
proper  to  give  an  unlimitted  deputation  to  th^ 
laid  JoycCy  but  m  and  by  faid  writing,  autho- 
rized and  empowered  him  to  hold  and  execute 
the  office  of  deputy-flieriff,  for  the  term  of  fix 
ifnonths,  from  the  24th  day  of  Augufl  aforefaid, 
and  no  longer;  and  in  confideration  thereof, 
as  well  as  of  the  letter  aforefaid,  the  faid  Miller 
and  faid  Joycty  on  the  25th  day  of  Auguft  afore- 
faid, made  and  executed  the  bond  on  which,  &c. 
having  fpecial  referrence  and  refpeQ:  to  the  de- 
putation aforefaid,  and  to  nothing  elfe;  and  the 
deputation  aforefaid  was  and  is  the  only  power 
and  authority  which  the  plaintiff  ever  gave  to 
faid  William  Joyoe^  of  holding  or  executing  the 
office  of  deputy-flieriff,  in  and  for  the  county  of 
Hartford ; — and  the  plaintiff  hath  not  been 
harmed  or  damnified  by  reafon  of  faid  M//mw 
being  dcpnted  as  aforefaid.  Aiid  the  rej^oiflder 
concluded,  by  traverfmg  the  pMimrff's  having 
fuffered  for  the  defat^lts  of  faid  deputy,  within 
faid  term  of  fix  months. 

On  demurrer  to  this  ttjoinder,  judgement 
was  for  -the  defendants :  For,   ' 

i*:B¥  TflE  W.BOLE  Couftifiir— -Ti'ie  cowdati0.n 
of  the  bond  did  not  pmvid^'for  A  dej>©tatioift'che 
-ftieriff  might  make  or  conwjiue  4t|)leafure>;  but 
•  it  counted  upon,  andrefered  to  a  deputation  he 
had  then  in  fafli  ma4^y  which,  al  appears  tofti 
the  plea^ings^  w^s-  fiG>r^  a  ^  liiilitM''  term  >«>f  fix 
momhs,  aad^'ife  c-ouM  opiei^ate^'ho  ^onge'P;^  and 

the 


County  of  HAi^Troiii),  Nov.  Term.  i$g 

the  bond  was  to  fecure  againil  defaults  that  ^^357 

might  happen  upon  that  deputation,  which  thofe =^ 

in  difpute  did  not,  but  were  fubfequem  to  the  Williams 
expiration  of  faid  term.  agmn^ 

^  •  Miller, 


Barnard  againjl  Norton. 

THIS  was  an  a61ion  upon  an  affumpfit,  t© 
pay  the  debt  of  another,  in  cafe  of  fai- 
lure. 

The  fubftance  of  the  declaration  was — That 
one  V/illiam  Warne?',  of  New-Canaan,  in  the 
county  of  Albany,  was  indebted  to  the  plain- 
tiff, in  the  fum  of  24/.  gs,  lawful  money,  by 
note,  bearing  date  the  21ft  day  of  September, 
A.  Di  T781.  On  the  25th  day  of  February, 
1782,  the  plaintiflp  was  about  to  attach  the  ef- 
tate  of  faid  War7iery  then  in  Hartford,  for  the 
fecurity  of  his  debt;  when  the  defendant,  in 
order  to  induce  the  plaintiff  to  ftay  the  collec- 
tion of  his  debt,  and  to  permit  faid  Warner  to 
pafs  with  his  property  undifturbed.  Into  the 
Hate  of  New- York,  did  iU-ndertake  and  en- 
gage to  pay  faid  debt,  in  cafe  Warner  fhould 
not  do  it;  and  did  accordingly  write  and  fub- 
fcribe  on  the  note,  in  manner  following,  viz. 
^*  I  acknowledge  myfelf  hplden  for  the  within 
■*^  fum  of  money,  if  it  cannot  be  obtained  of 
**  the  within  named  William  Warmr, — That  in 
confideration  ;thereof  the  plaintiff  permitted 
Warner  to  depart  i^;ith  his  goods  out.  of  this 
tote,  and  at  the  fecial  inftance  and  j^q-iif  ft  of 
the  defendant,  did  not  commence  any  i:iiit  on 
faid  note,  until  faid  Warner  began  to  fail  in 
his  circum&ances ;  That  in  the  montli  of  Oc-'. 
A  a  tober^ 


Nar 


toa. 


194  CouNtY  OF 'Hartford,  Nov.  Term. 

^Tgg^     tober,  1783,  he  brought  his  a8;ion  on  the  note 

•^ ^=     againft  Warner,  and  on  the  7th   of  February^ 

Barnard  1784,  recovered  judgement  before  tlie  Supreme 
jfigainjl  Court  of  the  ftate  of  New- York  ;  but  that  War^ 
ner  had  become  a  bankrupt,  and  taken  benefit 
of  an  afcl  of  bankruptcy  ;  wherefore  nothing 
could  be  obtained  of  iaid  Warner  by  faid  j  udge- 
ment :  And  that  the  defendant  had  received  full 
notice  thereof,  whereby  he  became  liable,  &c. 
The  defendant  pleaded — That  at  tlie  time  of 
making  the  promiie,  and  for  more  than  one 
year  and  an  half  afterwards,  fdid  Warner  was-;a 
perfon  in  affluent  and  folvent  circumftances,. 
poffeffing  a  large  real  and  perfonal  eltate,  much 
more  than  fuihicient  to  fatisfy  the  plaintiff's 
note  ;  and  the  plaintiff  did  not,  from  the  time 
of  :making  faid  promife,  until  more  than  a  year 
and  an  half  afterwards,  attempt  any.  recovery 
of  faid  note  from  faid  Warper,. 

To  this^  thdre  was  a  demurrer,  and  joinder 
in  demurrer— And,  ; 

By  the  whole  Court.- — r-T.he  plea  is  in- 
fafiicient ;- — it  contains  no  denial  or  avoidance, 
of  the  principal  faOs  alledged  in  the  declara--; 
tioiif  •  It  is  averred  in  the  declaration,  -thiat  the 
plaintiff  neg]e6Le4  to  recover  his  debt  of  '"tVar-,'^ 
yr^r'untif  Warner-h^id  become  infbly eh t,  on  the' 
requert  of  the  defendant^  and  on  his  promife; 
to  pay  it.  in  cafe  it  coiild  not  be  recovered  of 
Warner  J  ^nd  the  plaintiiPs  forbearance  to  fiie, 
Warner  was  the  confideration  on  which  the'd^-, 
feridant's  promife  v;as  madei ;  and  as  it  does, 
not  appear  that  any  particular  time ;6f  forbear- 
ance w^as  agreed  on  by  the  parties,   or  that  the 
defendant  afterwards  requeltetj  the  plaintiff  to 
purfue  his  lemedy  againft  Warner  until  he  be- 
came infolvent ;  therefore.   Warned'" s  ability  to 
pay  the  debt,  rauit  be  fUppofed  to  "have  been 
at  the  rifque  of  the  defendant,  daring'the  whole 
time  of  forbearance.  Adams 


to  her  lu.i- 
b  .vA. 


County  of  Hartford,  Nov.  Term.  195 

Adams  againji  Kellogg.  i^^*^i  ^  ^  ^^j3^ 

THIS  was  an  appeal  from  a  judgement  in  a  ^cme  ca- 
the  Court  of  Probate,  eftablilliing  the  devirj'dl 
will  of  Mary  Kellogg. — The  teftatrix  was  pof- 
feffed  of  a  large  real  eftate,  which  fhe  derived 
from  a  former  hufband,  by  devife :  She  made 
her  will,  devifing  all  this  eftate  to  Elias  Kellogg, 
her  then  hufband  (except  two  fmall  legacies  to 
her  brother  antl  brother's  daughter)  and  ap~ 
pointed  him  fole  executor.  This  will  was  ex- 
hibited before  the  Court  of  Probate,  proved, 
and  eftablifhed  by  the  Judge.  The  appellant, 
being  the  brother,  and  only  heir  at  law  of  the 
teftatrix,  took  an  appeal. 

The  appellant  affigned  two  reafons  for  his 
appeal. 

1.  That  the  tejlatrix,  at  the  time  of  making 
and  executing  faid  will,  was  2l  feme  coverty  and 
the  wife  of  the  faid  Elias  Kellogg,  the  executor 
and  appellee  in  this  cafe  ;  and  therefore  the 
fame  is  void  and  of  no  force. 

2.  That  the  tejlatrix  made  faid  will  under  the 
coercion,  and  in  confequence  of  the  mal-treat- 
ment  and  compulfion  of  the  faid  Elias,  and  for 
her  own  peace  and  fecurity;  therefore  faid 
will,  and  the  probate  thereof,  ought  to  be  fet 
afide. 

The  appellee  replied  to  the  firft  reafon — 
That  faid  will  and  teftament  was  the  voluntary 
a8:  and  will  of  the  teftatrix,  and  was  made  by 
the  confent  of  her  faid  huftDand  ;  and  after  the 
fame  was  rfiade,  her  faid  hufband  afl'ented  to  it  ; 
and  after  the  death  of  the  faid  Mary^  the  faid 
huftjand  affentcd  to  the  fame,  approved  there- 
of, and  caufed  faid  will  to  be  proved  and  ap^ 
proved,  as  aforefaid. 

And  to  the  fecond  reafon — That  fiid  Mary 

being  of  found  mind  and  memory,  made  faid 

A  a  i5  will 


igS  County  or  Hartford,  Nov.  Tsiim. 

*^Tg5f     will  and  teftamcnt  of  her  own  mere  motion, 

"^     — •     without  any  mal-treatment,  coercion,  compul- 

Adams     fion,  folicitation,  requcft  or  importunity,  done, 

^|^^«/     made  or  had  by  the  faid  EliaSy  or  any  other 

°^*    perfon  in  his  behalf. 

To  the  firft  part  of  the  reply,  there  was  a  de- 
murrer, and  joinder  in  demurrer; — to  the  fc« 
cond  part,  an  iflfue  was  taken  to  the  court. 
Judgement  was  for  the  appellant.     And, 

By  the  whole   Court. With  regard 

to  the  fecond  exception  to  the  will,  we  do  not 
find  proof  of  any  particular  a8:s  of  coercion,  or 
mal-treatment,  ufed  to  obtain  it;  but  the  cafe, 
in  this  refpe6t,  is  left  to  reft  on  the  common  pre- 
fumption  arifing  out  of  the  condition  of  cover;^ 
ture. 

As  to  the  other  exception^ — It  is  a  general 
rule  of  the  Englifh  common  law,  that  a  feme 
covert  cannot  make  a  will,  becaufe  (he  is  un- 
der the  power  of  her  hufbandi  and  obligations 
and  habits  of  fubmiflion  to  him.  The  reafoa 
of  this  rule  applies  with  fpecial  force,  in  cafe 
of  a  devife  dirctlly  to  the  hufbandhimfelf ;  andl 
it  holds  good  in  all  countries.  The  difability 
of  a  feme  covert  in  this  refpeOr,  at  common  law, 
is  not  removed  by  the  ftatute  of  wills  in  this 
date;  for  it  excepts  perfons  "  legally  difabled,'* 
as  feme  coverts  in  particular,  were  confidered 
at  common  law  to  be.  With  regard  to  the  ex- 
ceptions to  this  general  rule,  as  they  are  laid 
down  in  the  books,  they  do  not  go  at  all  to  real 
eftate  (which  is  the  moft  important,  as  well  as- 
moft  convenient  to  be  prcferved  for  heirs)  not 
to  other  difpofitions  that  may  benefit  the  huf- 
band,,  or  to  obtain  which  might  induce  from 
him  coercion  or  other  mcafures,  deftru6live  of 
family  peace  and  quiet.  A  feme  covert,  it  is 
faidj  may  make  a  will  of  perfonal  eftate,  with 
the  eonfent  of  her  huiband^  iut  this  is  only 

the 


County  of  Hartpivrd,  Nov.  Term.  197 

the  hufband  giving  away  his  own  eftate  in  com-     *~oF" 
piifance  to  his  wife  ;  ormay  be  in  compliance     ==L=^ 
with  a  marriage   fettlement ;  and  he  may  re-      Adams 
voke  the  will  before  or  after  her  death,  at  any     fg^irji 
time,  until  it  be  proved.  Kellogg, 

It  is  faid  alfo,  that  a  feme  covert  may  make 
a  will  of  her  things  in  adion  ; ,  bu-t  the  hufband 
can  have  no  inducement  to  obtain  a  will  of 
thefe ;  for  he  can  at  pleafure  reduce  them  to 
paffeffion,  and  make  them  his  own  without  a 
will,  at  any  time  during  the  coverture. 

It  is  further  faid,  that  a  feme  covert  may 
make  an  executor  of  things  in  her  hands,  as 
executrix;  but  flie  cannot  devife  them.  It 
doth  not  affe8:  the  intereft  of  her  hufband,  nor 
that  of  her  heirs,, whether  flie  make  the  ap^.. 
pointment  or  not,, 

There  is  one  cafe,  indeed,  in  which  a  feme 
covert  is  admitted  to  have  a  power  with  her 
hufband  to  difpofe  of  real  eftate,  but  it  is  not 
by  will;  file  may  do  it  in  England  hy  fine,  and 
here  by  deed ;  but  this  may.  be  of  neceifity,  for 
the  prefent  ftipport  and  better  accommodation 
of  herfelf  and  family...  She  is  to  be  examincd 
alfo  before  a  Magijitrate,  whether  flie  a£ts  freely ; 
neither  of  which  reafons  operate  in  favour  of 
her  having  power  to  difpofe  of  her  eftate  by 
will. 

It  is  alfo  againft  the  general  policy  of  the 
law,  with  regard  to  marriage,  which  miakes  the 
wife  one  with  her  hufband,  and  di fables  her  fe^ 
perately  or  without  him,  to  make  any  contract:, 
or  do  any  legal  a61  to  bind  his  intereil  or  her 
own ;  that  fhe  fliould  have  a  power  of  contracl- 
ing  with  him,  or  devifing  to  him,  which  fuppofes 
her  pofTefled  of  a  con  trading  or  difpofing  pow- 
er, independent  of  him. 

V/hcreforc,  we  are  of  opinion,  that  the  de- 
vife, in  this  cafe,  from  the  ferae  covert  to  her 

hufband;,. 


198  County  of  Hai^tford,  Nov.  Term, 

^^867  l^u^'^^^cl,  is  void  ;  and  that  the  decree  of  the 

s=;==:==  Court  of  Probate,  approving  the  will,  fhould 

Adams  be  reverfed. 

againji 
Kellogg. 


W1L9OJ? 


County  of  Tollani>>  Jan.  TePvM,  igg 

Wilson   and    Others   againfl   Hinkley   and    „,.,,^ 
Others,       ,      .   .  ^^^^ 

ERROR  from  the  judgement  of  Juftice  of   j^^f^lf 
the  Peace. -Hinkley  and  others,  feleB:-       ^5^^, 

men  of  the  town  of  Tolland,  brought  their  ac- 
tion before  a  Jufliice  of  the  Peace, '  againft 
Willfony  and  the  other  inhabitants  of  the  town 
of  Coventry,  for  certain  fums  of  money  ad- 
vanced for  the  neceifary  relief  and  fupport  of 
Amy  Cxfar  and  her  two  children,  alledged  to 
be  the  proper  paupers  of  the  town  of  Coventry. 

The  inhabitants  of  Coventry,  by  their  agent, 
pleaded  in  abatement — That  the  Juftice  before 
whom  faid  a8:ion  w^as  brought,  before  the  date 
and  fervke  of  the  writ,  had  given  his  opinion 
on  the  point  in  queftion,  in  confequence  where- 
of the  plaintiffs  had  brought  faid  aB;ion. 

2.  That  the  adion  pending,  being  a  contro- 
verfy  between  two  towns  or  communities,  is 
not  cognizable  by  a  iingle  minifter  of  juftice. 

This  plea  was  by  the  Juftice  adjudged  infuf- 
ficient,   and  a  rejpondeas  oiifxr  ordered. 

It  was  then  pleaded— That  faid  Amy  was 
born  in  faid  Tolland,  and  that  her  mother  was 
an  Indian  woma%  a  native  of  this  couhtry ;  and 
that  faid  Amy  lived  with  Jabez  Edgerton,    of 
faid  Tolland,  as  a  fervant,  until  fhe  arrived  at 
the  age  of  eighteen  yearSj  when  her  fervice  ex-*- 
pired,    and  (he  was   fet  at  liberty :    That  ftic> 
then  continued  to'refide  in  Tolland,    until  (he 
arrived. at  the   age  of  twenty-two  years;    at 
which  time,  viz.  in  Auguft,  1782,   ftie  marrfed 
to  one  Timothy  Ccefar;  in  faid. Tolland,    whofc 
mother  was  alfo  an  IndiamwomaTpy  "and  native 
of  this  country  :  That  faid  Timothy ^dX  \h^  time; 
of  his  intermarriage  with  faid  ^ ?>?/)','  w£ts  a  flave. 
and  fervant  to  ione  ■Ji)feph  Bovey,  olMm-sJield  ; 

and 


soo  CotTNTY  OF  Tolland,  Jan.  Term^ 

■^   g-^     and  for  about  nine  months  after  faid  interinar- 
=^     -^     riage,  they  both   lived  with  faid  Hovey.     In 
Willfon,     March,  1783,  they  both  came  into  the  town  of 
^c«        Coventry,    and  there  lived   for  the    term  of 
Hin\dty     ^^^^^^^    months,    and   then  left   faid  town: 
^c»   '    That  the  only   refidence  the  faid  Amy  ever 
made  in  faid  town  of  Coventry,    was  while  llie 
lived  with  her  hufband,   and  under  coverture', 
as  aforefaid  :    That  faid  Edgerton  and  Hovcy 
have   eftates  amply   fufficient   to  fupport  faid 
Amy  and  her  two  children  ;  therefore,  the  de- 
fendants are  not  liable  hy  law  to  fupport  them. 

The  replicaiion  was — That  faid  Amy  re- 
moved from  the  town  of  Mansfield  to  the  town 
of  Coventry,  in  the  month  of  November,  1782, 
and  continued  her  refidence  there  till  the  month 
of  June,  1784,  which  is  eighteen  months,  dur- 
ing which  term  fhe  had  one  child  born  in  faid 
Coventry  :  That  by  living  in  faid  Coventry 
faid  term  of  eighteen  months,  they  gained  a 
refidence,  and  became  inhabitants  of  faid  town 
of  Coventry;  and  that  faid  Amy  and  her  chil- 
dren have  not  fince  gained  a  refidence  or  be- 
come inhabitants  of  faid  town  of  Tolland. — 
And  the  plaintiff's  demurred  to  the  refidue  of 
the  plea. 

To  the  replication  there  was  a  general  de- 
murrer— and  judgement  was  by  the  Juilice 
rendered  for  the  plaintiffs. 

The  errors  complained  of  in  this  judgement 
were, 

1.  That  the  queflion  in  faid'  caufe;  being 
between  two  towns,  relative  to  the  duty  of 
maintaining  certain  paupers,  was  very  interefl- 
ing  to  the  parties,  and  involved  in  it  points  of 
great  nicety  and  high  importance,  to  be  pro- 
perly decided  :  That  the  plaintiffs,  to  avoid  a 
proper  difcuffion  and  decifion  of  faid  caufe^ 
commenced  faid  fuit  before  faid  Juftice,  after 

bavin  cr 


County  or  To'Llakd.>  Jam.  Tep.m.  ^01 

having  heard  his  opinion  on  the  point;  and  to     ^ToT" 
prevent  faid  caufc  from  being  removed  by  ap-     ==4==4L 
peal,  they  demanded  no  more  than  forty  ftiii-    Willfon, 
lings,  which  was  illegal.  &c. 

2.  That  by  the  pleadings,  it  appears — That  i^f^^^. 
faid  Amy  was  born  of  an  Lidianjquaw,  one  of  ^^g^ 
the  natives  of  the  country  :  That  llie  lived  in 
Tolland,  as  a  fervant,  until  flie  was  eighteen 
years  of  age,  when  fhe  was  fet  at  liberty  by  her 
mafter;  and  that  afterwards  fhe  continued  to 
refidc  and  dwell  in  Tolland,  for  the  fpace  of 
four  years,  until  fhe  was  twenty-two  years  of 
age ;  and  thereby  gained  a  legal  fettlement  in 
faid  Tolland,  by  commorancy  in  her  own  right 
(if  a  perfon  of  her  defcription  could  gain  fuch 
a  fettlement)- — and  her  intermarriage  with  Ti-^  ^ 

mothy  CcefaVy  whofe  mother  was  alfo  an  Indian 
fquaWy^  and  faid  Timothy  -Sl  fervant  and  flave  to 
Jofeph  Hoveyy  of  Mansfield;  and  faid  Timothy 
reiiiding  in  faid  Coventry,  by  perraiflion  of  his 
mafter,  the  time  mentioned  in  tlia  plea,  could 
gain  no  legal  fettlement  there ;  neither  could  '^ 
the  faid  Amy^  refiding  with  him  under  thofe  cir« 
cumftances,  gain  any  for  herfelf  or  children — 
and  when  her  huiband  left  her,  fhe  had  no 
place  to  refort  to.  but  the  town  of  Tolland,  that 
being  the  place  of  herlaft  legal  fettlement. 
Thejudgementof  the  Jufticewas  affirmed. 

By  the   whole  Court.- ^With  regard 

to  the  plea  in  abatement. — A  fuftice  of  the 
Peace  is  bound  by  his  oath  not  to  be  "  of 
**  counfel  in  any  quarrel  that  fliall  come  before  . 
^^  him  ;"  and  he  ought  alfo  to  be  cautious  in 
declaring  extra-judicial  opinions,  led  an  undue 
ufe  fhould  be  made  of  them  ;  yet  is  he  not, 
merely  by  having  manifefted  his  opinion  on  a 
queftion  of  law,  legally  difqualihed  from  judg- 
ing in  a  caufc  in  which  that  queftion  comes  up; 
which  is  the  amount  of  the  exception  in  the 
B  b  ,  prefent 


«02  CoVNTY  OF  ToLLAND,  Jan.  TeRM. 

"Tgr'     prefent  cafe  :  Nor  is  it  material  to  his  jurif- 

s==—-—.     didion  of  what  defcription  the  parties  are,  or 

Willfon,     what  the  caufe  is,   if  the  title   of  land  is  not 

^'c.        concerned,   and  the  demand  does  not  exceed 

jga^"J^      four  pounds.     The  decifion  of  the  Tuftice,  in 

&c.        this  cafe,  is  limited  in  its  operation  merely  to 

the  fum  demanded  in  the  writ,  and  does  not 

determine  the  fettlement  of.  the  paupers,   as  it 

may  refpeO;  demands  for  their  future  fupport. 

As  to  the  merits — Timothy  drfar,  being 
born  of  a  free  woman,  a  native  of  the  land, 
was  not  a  flave,  nor  was  he  within  the  mean- 
ing of  the  ftatute,  "  a  fervant  bought  for  time;'* 
nor  does  it  appear  that  he  was  an  apprentice  un- 
der age,  or  that  he  was  under  any  difability  to 
gain  a  fettlement  by  commorancy  ;  and  having 
refided  more  than  one  year  in  the  town  of  Co- 
ventry, with  his  wife,  the  faid  Amy,  he  there 
gained  a  fettlement  for  hirafelf  and  her,  as  al- 
fo  for  her  children;  Nor  was  Edge?"ton,  her 
former  mailer,  holden  for  her  fupport ;  for 
fhe  had  never  been  his  flave,  or  fervant  bought 
for  time ;  but  the  burthen  of  her  fupport  de- 
volved upon  the  town  of  Coventry,  from 
whence  having  been  removed  to  the  town  of 
Tolland,  and  there  become  chargeable,  a  right 
of  action  accrued  for  the  expence  arifen,  in 
favour  of  the  town  of  Tolland,  againft  the 
town  of  Coventry. 


Storrs 


Wetmore. 


County  of  Middlesex,  Jan.  Term.  203 

St 0RRS^^<3;fn/2  Wetmore. 

^      ->  Storfs 

THIS   was   an   aftion   on   the   cafe,    by  a  ^jgainfi 
freighter  of  goods  on   board  a  fhip  be- 
longing to  the  defendant,  for  the  misfeazance 
of  the  navigator. 

Pita  in  oiatement — That  one  Richard  S^l^elL 
?/i^r..  was  joint  owner  with  the  defendant,  and 
equally  aceountable  for  the  condud  of  the  maf- 
tevy  and  ought  to  have  been  joined  in  the  ac- 
tion ;  on  which  iffue  was  taken. 

On  the  trial  of  this  iffue,  teftimony  was  of- 
fered to  prove,  that  Spelhnan,  fmce  the  com- 
mencement of  the  fuit,  had  confeffed  himfelf 
to  be  joint  owner  with  the  defendant. — But, 
THE  Court  faid  it  was  inadmiffible — That 
tbe  fame  point  had  been  deliberately  deter- 
mined in  the  cafe  of  Hamlin  vs.  Fitch^  at 
Windham,   laft  term. 

It  was  then  moved,    that  Spellman  himTelf 

might  be  permitted  to   teftify.- And,  the 

Court  faid,  that  any  one  might  be  permitted 
voluntarily  to  teftify  againft  his  intereft,  though 
he  could  not  be  compelled. 


BuLKLEY   againjl  Richards. 

ACTION  of  trover,  for  193  barrels  of  tar, 
and  10,  barrels  of  pitch. The  defen- 
dant, being  conltable  of  New-London,  took 
the  property  in  queftkn,  as  the  eflate  of  vVil^ 
Ham  Princey  by  attach.j.-ent,  at  the  fuits  of  J/^-» 
didiah  Leeds,  Job  Tabor ^  and  Co,  and  alfo,  by 
execution,  in  favour  of  Edward  Ballami  and  Co, 
-hhz  The 


«o4  CauKTY  or  Mid©lesix»  Jan.  Te'^m. 

"^iTsT,  '^^^  defendant  a6led  by  order  of  the  creditors. 
3===^  Hallam's  execution  was  fatisfied  with  other  ef- 
Bulkley  tate ;  fo  that  the  whole  ^f  the  property  in 
^gah'jf  queftion  was  finally  applied  to  the  demands  of 
^^«^^^^«'    Leeds  2.nA  Tabor. 

A  queftion  arofe,  whether,  under  fuch  cir- 
cumftances,  -Hallam  was  a  difmterefted  and  le- 
gal witnefs. 

By  Mr.  Halfey  and  Mr.  Wright,  it  was  con- 
tended— That  this  cftate,  being  firft  taken  by 
Leeds  and  Tabor y  and  by  them  finally  fold,  they 
alone  would  be  holden  to  indemnify  the  officer, 
if  the  prefent  a6lion  fliould  be  adjudged  againll 
him  :  That  Hallam  having  withdrawn  his  claim 
to  the  eftate,  and  refigncd  it  up,  thereby  became 
wholly  unconne6led  with  it,  and  was,  in  all  re- 
refpeds  a  difinterefted  witnefs. 

Mr.  Parfons  and  Mr.  Ingerfok  contra. — The 
tortius  taking  of  this  property,  in  the  firft  in- 
ftance,  creates  the  right  of  attion  in  the  prefent 
cafe ;  and  though  Hallam  afterwards  relinquifh- 
ed  his  claim,  and  ordered  the  officer  to  defift 
from  proceeding  on  his  account,  this  can  only 
go  in  mitigation  of  damages,  and  the  officer  is 
ftill  liable  for  the  acl  of  taking ;  this  being  done 
by  the  order  of  Hallain,  he  is  bound  to  indem- 
nify the  officer,  and  is  therefore  materially  in- 
tcrefted  in  the  event  of  the  prefent  fuit. 

By  tpie  Court. The  w^hole  oi  Prince's 

creditors,  who  direfted  the  officer  to  levy  on 
thofe  articles,  are  anfwerable,  if  the  property 
appears  not  to  have  been  in  Prince  at  that  time; 
and  afterwards  to  relinquifh  the  claim,  and  re- 
ftore  the  things  taken,  does  not  ptirge  the 
wrong. — The  witnefs  is  confequently  inadmif- 
fible. 

The  Chief  Jujiice  was  inclined  to  admit  the 

witnefs,  on  the  ground  that  his  intcreft  in  the 

^.  event  was  fo  minute,  that  it  could  not  be  fitp- 

pofed  to  influence  his  teflimony.  Dorr 


M 


County  of  Middlesex,  Jan.  Term.  205 

Dorr  againjl  Chapman. 

OTION  was  made  for  a  new  trial,  during  ^^<>^ion  f^c 
the  feffion  of  the  court  at  which  judge-  made'^^i^ 
ment  had  been  rendered  :  It  was  committed  to  J"^"!'/^^' 
writing,  read  hy  the  clerk  of  the  court,  in  the 
hearing  of  the  adverfe  party  and  his  counfcl, 
and  the  duty  paid. 

Mr.  Dana  and  Mr.  Goodrich^  for  the  defen- 
dant,  took  two  exceptions,  by  way  of  abate- 
ment : — 

1.  That  the  defendant  had  not  been  lawfully 
fummoned  to  appear  and  defend  againft  faid 
motion. 

2.  That  the  fame  reafoiis  afii{^ned  in  the  mo* 
lion  for  a  new  trial,  had  been  before  urged,  for 
a  continuance  of  the  action,  but  were  over-ruled 
by  the  court, 

Mr.  Root  and  Mr.  Parfons^  in  fupport  of  the  ' 
motion,  faid — That  antiently,  no  new  trial  was 
allowed  in  this  ftate,  but  by  petition  to  the  Ic- 
giflature.  This  pra6lice  was  found  inconveni- 
ent, and  a  ftatute  was  palled,  ena6ting,  "  That 
*^  the  Superior  and  County  Courts  in  this  ftate, 
*^  fliall  and  may,  from  time  to  time,  as  occafion 
*^  fhall  require,  and  as  by  them  fliall  be  adjudg- 
**  cd  reafonable  and  proper,  grant  new  trials  of 
*'  caufes  that  fhall  come  before  them,  for  mif- 
"  pleading,  difcovery  of  new  evidence,  or  for 
"  other  reafonable  caufe  of  appearing,  accord- 
"  ing  to  the  ufual  rules  and  methods  in  fuch 
*'  cafes.'* After  this  ftatute  pafled,  the  me- 
thod of  applying  by  petition  was  fome  time  con- 
tinued; but  as  the  ftatute  left  the  manner  of 
the  application  to  be  regulated  by  the  court, 
as  fliould  be  found  moft  conducive  to  a  fpcedy 
adminiftration  of  juftice  ;  the  pra6lice  of  mov- 
ing in  court  has  been  permitted,  and  experi- 
ence 


»oG  CouxNTY  OF  Middlesex,  Jan.  Term. 

tnhj.     cnce  has  fhewn  it  to  be  lefs  expenfive,    and 

•"•^         '•     more  convenient,   than  the  antient  praftice  of 

Dorr       petitioning  :    That  every  purpofe  of  notice  is 

againji     ^^  fally  anfwcred  by  a  motion  in  court,   as  bv 

Chapman.  --^  •      i  c         -y      y  c     \    r  ^ 

an  original  procels,   with  the  ulual  forms  of 

fervice. 

On.  the  other  fide,  it  was  contended  by  Mr. 
Goodrich — That  the  pra6lice  of  moving  in  court 
for  new  trial  had  been  permitted,  where  th-e 
parties  were  agreed,  but  had  not  been  efla- 
bliflied  by  an  adjudication  of  court.  The  con- 
clufionof  the  ftatute,  allowing  the  courts  to  grant 
new  trial,  is,  that  it  may  be  don^,**  according  to 
'■  the  common  and  ufual  rules  and  methods  in  fuck 
"  cafes.'*  The  common  and  ufual  method  then 
was,  to  apply  by  petition,  ferved  on  the  ad- 
verfe  party  twelve  days  before  the  time  of  tri- 
al. This  is  the  only  legal  notice,  and  may  not 
be  difpenfed  with,  but  by  agreement  of  parties,. 
That  the  court  evidently  confidered  an  appli- 
cation for  a  new  trial,  not  fimply  as  a  motion,, 
but  as  an  original  procefs;  for  the  flate  duty 
was  ordered  to  be  paid  in  both  cafes. 

The  Court  gave  no  opinion  on  this  queflion  i. 
but  rejeded  the  motion,  on  the  fecond  excep- 
doa  made  to  the  motion. 


Phenix 


County  of  Litchfield,  Feb.  Tbrh.  '207 

Ph E N I X  againjl  Pr  i n  d  l e . 

ACTION  of  book^debt— the  general  iffue  intereftmaf 
pleaded. — — The  charges  exhibited  were  ^l  •„  an^ac- 
for  fundry  articles  of  merchandize,  fold  and  tion  of  book 
delivered  in  New-York,  at  one  year's  credit,  ^yu'ht'heie 
before    the    late  revolution. — It    appeared   in  ^s  cithe-  aa 

.  ,  ,  ,  r  r  n         •         XT  expre's  or 

evidence,  that    the    courie  ol   trade   in  New-  in,  pi  id 
York,  and  the  cuftom  of  merchants  there,  was  co-^ra^, 
to  charge  intereft  on  the  balance  of  their  ac- 
counts,  after  the  expiration  of  one  year,  w^he- 
ther  there  was  an   exprefs  agreement  to   that 
purpofe  or  not.      It  was  alfo  acknowledged  by 
the  defendant,  that  he  expefted  to  pay  intereft 
agreeably  to  that  cuftom,  though   he  made  no 
exprefs  promife.      The  defendant   had  made 
payments   at   different  times,  which  were  not 
difputed  by  the  plaintiff.     The  laft  payment 
was  in   continental  billsj    March^    1778,  which 
was  credited  in  th€  plaintilPs  account,    at  the 
value  afcertained  by  the  fcalc  of  depreciation  5 
the  plaintiff  had  applied  the  payments  to  dii- 
charge  the  intereft,  the  overplus  to  the  princi- 
pal.    From  the  accounts  ftated,  it  appeared, 
that  computing  no  intereft,  and  allowing  the 
laft  payment  at  the  nominal  fum,  the  balance 
would  be  for  the  defendant,  otherwife,  for  the 
plaintiff. 

On  this  cafe,  two  queftions  v/ere  made. 

1.  Whether,  under  fuch  circumft^nces,  the 
account  fhall  carry  intereft. 

2.  Whether  the  payment  made  in  continen- 
tal money  fhall  be  reduced  by  the  fcale  of  de- 
preciation. 

The  jury  found  a  verdiQ:  for  the  defendant- 
on  which  the  court  delivered  the  following 
opinions ;- — 

The 


2o8  County  of  Litchfield,  Feb.  Term, 

^"tStT        ^he  whole  Court  agreed,  as  to  the  fe- 
zi:-JLll:     cond  point,  that  the  fum  paid  in  continental 
Phenix     bills  was  not  fubjeft  to  redu6lion  by  the  fcale 
ogainft     of  depreciation ;  for,  at  the  time  of  payment, 
niidie.    j^Q  diftindion  was  made  by  courts  of  juflice  be- 
tween bills  and  coin;  and  the  parties  evident- 
ly  confidered  them  alike   at  the   time  of  this 
tranfa6lion:  The  courts  therefore,  will  not  give 
it  an  operation  different  from  the  original  in- 
tention of  the  parties. 

On  the  firfl;  point.  Dyer,  Sherman,  Pit- 
kin and  Ellsworth,  jfudgeSy  agreed — That 
though  book-debts  do  not  carry  intereft  of 
.  courfe,  by  the  laws  of  this  Hate,  yet,  where  the 
contrail  is  for  intereft,  it  may  well  be  recover- 
ed in  this  aclion.  At  the  time  this  debt  was 
contra6led,  it  appears  to  have  been  an  efta- 
bliflied  cuftom  of  the  merchants  in  New- York, 
to  exa8;  intereft  after  one  year's  credit  :  The 
defendant  knowing  this,  received  the  articles 
charged  in  the  plaintiff's  account;  he  has  ac- 
tually made  payments,  to  a  greater  amount  than 
the  fum  of  the  debt,  without  intereft,  from 
which  arifes  a  ftrong  prefumption,  that  part 
was  intentionally  paid  for  intereft;  and  the 
■whole  amounts  to  proof  of  a  contra6l  to  pay 
intereft,  which  ought/ to  be  recovered  in  the 
prefent  action. — Douglas's  Reports,  ^61,  Edows 
vs.  Hawkins. — Alfo,  Hinman  and  others  vs. 
•  StiUy  ante,  10. — Thomfon  vs.  Wales  and  Moor, 
ante,  35. 

Law,   Chief  Jujlice, ^I  think,  upon  an 

implied  contrail  to  pay  intereft,  it  cannot  be 
recovered  in  the  aQion  of  book-debt,  though  it 
undoubtedly  may  by  an  aclion  on  the  cafe ; 
becaufe,  in  the  a6lion  on  book,  the  oath  of  the 
plaintiff  is  taken,  which  ought  never  to  be  ad- 
mitted to  prove  a  fact  of  that  kind. 

Judge 


County  of  Litchfield,  Feb.  TzkU^  ^6§ 

Judge  Ellsworth. -Where  intereft  is     *^-gTr 


eballenged  on  book,  the  agreement  to  allow  it 
Gught  to  be  proved  by  other  evidence  than  the 
oath  of  the  party;  (^o  ought  alfo  any  fpecial  price 
or  mode  of  payment  agreed  on,  if  he  would  avail 
himfelf  of  it)  for  his  teftimony  regularly  goes 
no  farther  than  to  the  quantity,  quality,  and 
delivery  of  the  articles  charged  ;^ — but  if  he 
hath  evidence  to  prove  an  agreement  to  allow 
intereft,  he  may  recover  it  in  the  fame  a8:ion 
with  the  -debt,  and  not  be  put- to  a  feparate  fuit. 


P he nix 

aga'infi 

Priiidie^ 


Brown  againjl  Lorb^o 

THIS  was  an  a61ioh  agairift  the  flier ifF,  for 
the  negleO:  of  his  deputy,  in  not  taking 
bail,  but  fuffering  a  perfon  arrefled  at  the  fuit 
of  the  plaintiff  to  cfcape,  whereby  the  plain- 
tiff loft  the  benefit  of  his  judgement.  It  was 
alledged  in  the  declaration,  that  execution  if- 
fued,  return  of  non  efi  inventus  made,  and  the 
bail  bond  demanded  of  the  IherifF,  which  was 
refufed. 

The  defendant  pleaded-— That  he  was  bail 
himfelf,  and  anfv/erable  in  that  way  only  ;  and 
that  this  aQion  not  being  brought  within  one 
year  after  judgement  againft  the  principal,  is 
barred  by  the  fcatute  of  limitation  refpefting 
bail. 

To  this  there  was  a  demurrer,  and  joinder 
in  demurrer. 

Mr.  Adams  and  Mr.  Kirhy\  for  the  plaintiff, 
took  two  exceptions  to  this  plea. 

1.  That  tlie  fheriff  cannot  be  bail  himfelf. 

2.  That  if  he  may  be  anfwerable  as  bail,  lie 
may  alfo  be  anfwerable  in  his  official  capacity^ 
at  the  election  of  the  plaintiff. 

C  C  The^ 


A  shcfi^ 
cA!in  t  be-J 
e   m    biii!^ 
or  be  anfwc-* 
rsbie  inthae 
ch^rafterfoC 
any  pciTon 
b)  hiiu  a  - 
CJicd;  h  t 
i^hef  ffr* 
the  pe  (\«n 
arcKedro 
go  at  la  ge^ 
wiuh  u. 
taking  fnffi"^ 
cient  bail, 
he  s  anlVe-^ 
rjtb'ein  h  « 
oflScial  ch««; 


iiQ  Coui^TY  on  Litchfield,  Feb.Term* 

=~gT*         They  contended — That  from  the  nature  of 
taB=X==Z4     the  fheriff*s  office  and  duty,  he  cannot  be  bail; 
Brown      he  has  the  euftody  of  all  prifoners  in  the  coun* 
agahj^     ty,  and  is  accountable  for  them  in  his  official 
^^^*       capacity ;  all  bail  bonds  are  to  be  taken  to  him, 
as  fheriff,   othcrwife  void  ;  and  he  is  required 
to  affign  the  bail  bond  to  the  creditor,  to  ex- 
onerate himfelf.     It  is,  therefore,  abfurd,  and 
oppofed  to  every  legal  idea  of  bail,  that  the 
fheriff  fhould  be  anfwerable  in  that  capacity, 
5  Coke,  ^g-^^  Black/lone* i  Com*  290 — 4^Bacon*s 
Ahrid..462, 

That  if  the  fheriff  may  become  bail,  he  is, 
notwithftanding,  anfwerable  in  his  official  ca- 
pacity, otherwife  the  party  might  be  deprived 
of  the  fecurity  of  the  fherlff's  bonds.  The  law 
requires  the  flieriff'  to  procure  bonds,  for  the 
faithful  difcharge  of  his  office  :  He  may  be  a 
bankrupt;  therefore,  it  cannot  be  admitted, 
that  he  may  at  pleafure  claim  to  be  bail,  and 
anfwerable  in  that  capacity  only,  and  fo  defeat 
the  party  injured  of  the  fecurity  ^f  thofe  bonds. 
The  legiflature  having  limitted  the  time  of 
bringing  anions  againft  bail,  to  one  year  from 
the  rendering  of  judgement  againfl.the  princi- 
pal ;  and  the  time  of  bringing  aftions  againfl:  ffie- 
riffs,  to  two  years ;  the  court  arc  bound  by  this 
flatute,  it  being  a  pofitive  law,  and  are  not  left 
to  confider  this  a6i:ion  within  any  equitable 
conftruftion  of  the  flatute  concerning  bail. 

Mr.  Reeve  and  Mr.  Tracy,  for  the  defendant, 
contended — That  the  ffieriff  might  take  upon- 
himfelf  to  be  bail ;  and  if  he  produced  the  bo- 
dy of  the  debtor  in  court,  he  would  not  only 
exonerate  himfelf,  but  would  place  the  credi- 
tor in  as  good  a  Ctuation  as  if  bond  had  been 
taken  from  a  third  perfon,  and  that  perfon  had 
delivered  up  his  principal  in  the  fame  manner. 
Sy  in  a  fuit  againft  the  ojictr^  the  creditor  could' 
•  '  be 


County  OF  LiTCHFiELB,  Feb.  TeIrm.  211 

be  in  no  worfe  fituation,  by  calling  the  officer     ^^{^%^^ 
to  anfwer  as  bail,  than  he  would  in  a  fuit  upon     p^-~^-^- 
the  bail  bond;  therefore,  the  fame  favourable      Brown 
indulgence  ought  to  be  allowed  the  officer,  and      ^'"''^^ 
4hc  fuit  to  be  brought  againft  him  within  the 
fame  time,  that  he  may  have  the  fame  oppor- 
tunity to  produce  the  body  of  the  debtor.     If 
the  fheriff's  perfonal  fecurity  is  infufficient,  he 
is  liable  for  having  taken  infufficient  bail ;- — 
therefore,  the  creditor  can  lofe  nothing  on  that 
ground ;    nor  need  he  be  embarraffed  in  the 
mode  of  his  fuit,  but  bring  the  fame  kind  of 
adion  that  is  now  brought,  permitting  the  offi- 
cer to  make  the  fame  kind  of  defence,  which 
might  be  made  by  the  bail. 

By  THE  WHOLE  CouRT.-^ A  fficriff  is  li- 

abl€  for  an  efcape,  but  not  as  bail ;  nor  is  he  to 
be  fued  asfuch,  but  in  his  official  capacity  ;  and 
may,  according  to  the  ftatute  of  limitations  in 
the  cafe  of  ffieriffis,  be  fued  any  time  within  two 
years  after  the  right  of  a8;ion  accrues.  The 
ftatute  of  limitations,  in  the  cafe  of  bail,  does 
not  extend  to  ffieriff's  in  the  letter  of  it ;  and  it 
being  a  ftatute  in  derogation  of  the  right  of  the 
fubjecl  at  common  law,  is  not  to  be  extended 
by  implication  to  cafes  not  mentioned  ; — nor 
does  the  cafe  of  a  ffieriff  come  fully  within  the 
reafon  of  the  ftatute.  Bail,  if  fubjefted  and 
Jrelied  upon,  is  to  be  noticed,  and  fued  early, 
that  he  may  take  his  remedy  againft  the  princi- 
pal ;  but'a  fheriff  fuffering  a  voluntary  efcape, 
for  which  he  has  to  pay  the  debt  or  damage, 
has  no  fuch  remedy  to  take. — The  plea  in  bar 
is  therefore  infufficient. 


CcS  Tk©M60;>J 


2i»  CouKTV  or  Litchfield,  Feb.  Tekm.' 

Thomson  againjl  Church* 

Thattheju.y  k  CTION  on  the  cafe,  for  words.  The  jii- 
hend'^d'thc  xX  ry  found  a  verdid  for  the  plai«tifF,  and 
^^ncLTol^'  4(:^.  damage. 

S^rhvV-  Mr.  Tracy  2iX\^  Mr.  Allen  movtd  in  arreft  of 

dia, .» noe     judgement,  and  alkdged  for  ca^fe, 

lunic<'ent         J.       o  '  .  .o  r>T.  it?i 

caufc  of  «*  1..  That  the  jury,.m  the  conndcration  of  t»e 
^^*  cafe,   were  divided,   fix  for  acquitting  the  de- 

fendant, and  fix  for  bringing  in  fmall  damages; 
but  finally,  they  all  agreed  to  bring  in  a  verdi6t 
of  four-pence  for  the,  plaintiff,  /uppofing  thfi 
*  law  was  fo,  that  upon  faid  verdi6l-  the  plaintiff 

could  hot  recover  but  four-pence  coft ;  and  up- 
©n  that  being  a  fa6l,,  or, not  a  fa8,  all  the  ju- 
rors confented.to  the  vcrdi6l .:  And  as  the  cafe 
-was  appealed  from  the  lower  court,  by  the  de- 
fendant, the  operation  of  law  was  fuch,  that  the 
•whole  coft  will  follow  the  vcrdi6l  againft  the 
defendant;  which  was  not  the  verdid  of  the 
jury ;  nor  was  it  the  intention  even  of  thofe 
jurors,  who  at  firft  were  of  opinion,  that  they 
ought  to  give  damages,  that  the  plaintiff  ought 
to  recover  hijs  whole  bill  of  coftr — and  had 
they  fuppofed  that  would  have  been  the  opera- 
tion of  law  upon  their  verdift,  not  one  of  the 
jury  would  have  confented  to  a  verdift  in  fa- 
vour of  the  plaintiff: — Therefore,  the  vcrdi6l 
was  founded  entirely  on  miflak^. 

2.  The  verdicl  againft  the  dcfendaat,  .in  the 
prefent  Cafe,  is  founded  on  this  idea — that  he 
maliciouily  and  falfly  accufed  the  plaintiff  of 
perjury  ;  which  idea  the  jury  have  contradict- 
ed in  the  moft  explicit  terms,  by  faying,  it  is 
no  more  than  4^.  damage  to  the  plaintiff;— 
and  therefore  have  miftook  the  law. 

By  the  v^^hole  Court. The  naotion  is 

inJufficicnt, — ^The  jury  have,  upon  tlicir  oaths, 

found 


County  of  Litckfield,  Feb.  Term." 

found  the  defendant  guilty ;  and  though  they 
may  have  mifapprehended  the  confequence  of 
their  verdict,  and  have  been  thereby  the  more 
readily  induced  to  agree  to  it — it  fhall,  never- 
thelefs,  be  intended,  in  fupport  of  the  verdi8:, 
and  to  avoid  an  implication,  that  the  jury  have 
violated  their  oaths — that  they  found  the  fafts 
according  to  the  evidence  before  them>  and 
the  real  convi6lion  of  their  minds. 

As  to  the  fecond  exception — the  infignifi- 
eance  of  the  damages — They  were  difcreti- 
onary  with  the  jury;  and  from  the  particular 
circumftances  of  the  cafe,  the  fmaileft  damage's 
may.  have  well  been  prefumed^> 


Thumfort 
againji 
Church* 


Frisbie  againfl^BwTLZTi. 

ERROR  from  the  judgement  of  a  Juftice  of 
the    Peace. On  the  application  of 

Butler,  to  George  Catlin^  a  Juftice  of  the  Peace, 
the  following  warrant  was  iffued,  vi^,  **  Where- 
*^  as  Jojiofh  Butler  hath  made  complaint,  under 
*^  oath,  that  he  loft,  on  or  about  the  itth  day 
*'  of  March,  in  Torrington,  about  twenty  pounds 
"  of  good  pork,,  out  of  the  cellar  o^ Daniel  Win^ 
chel,  of  the  value  often  fllillings,  lawful  mo- 
it  being  taken  by  feme  evil-minded  pcr- 
And  faid  Butler  fufpeBs  one  Benjaviin 
Frijbiey  of  Harwinton,  to  be  the  perfon  that 
*^  hath  taken  faid  porkj  and  prays  for  a  writ, 
'*  or.fearch  warrant,  to  fearch  for  his  loft  meat, 
**  &c. — To  John  Birge^  an  indifferent  perfon, 
**  lawfully  to  fcrve  this  writ,  there  being  no  pro~ 
"  perofficer,  without  coft  and  charge,  greeting: 
By  authority  of  the  flate  of  Connecticut,  you 


«f 


c< 


ney; 
*'fon: 


& 


,    Frifbie 


County  Of  LiTCHriBLb,  Fzb.  Term. 

''are  commanded  forthwith  to  fcarch  all  fuf- 
"  pedcd  places  and  perfons  that  the  complain- 
"  ant  thinks  proper,  to  find  his  loft  pork,  and 
"  to  caufe  the  fame,  and  the  perfon  with  whom 
**  it  fliall  be  found,  or  fufpefted  to  have  taken 
*'  the  fame,  and  have  him  to  appear  before  fome 
**  proper  authority,  to  be  examined  accord- 
**  ing  to  law." 

By  virtue  of  this  warrant,  Frijhic  was  arrcft- 
ed,  brought  before  the  Jufticc  who  iffued  it, 
and  upon  the  plea,  not  gudty^  judgement  was 
rendered,  that  **  he  was  guilty  of  (tealing  fai^d 
*'  pork;  and  that  he  pay  185.  as  treble  dama- 
*^  ges,  to  the  complainant,  and  a  fine  of  6s, 
*''  to  the  town-treafurer."* 

The  errors  affigned,  were, 
t.  That  the  warrant  iffued  upon   a  verbal 
Complaint  only  being  exhibited. 

2.  That  the  warrant  for  fearching  and  arreft- 
ing  was  illegal,  the  facts  all  edged  being  merely 
of  a  civil  nature,  and  not  fuch  as  wauld  juftify 
fuch  a  procefs. 

3.  The  warrant  is  a  general  fearch  warrant, 
commanding  all  perfons  and  places  throughout 
the  world  to  be  fearched,  at  the  difcretion  of 
the  complainant ; — therefore,   illegal  and  void. 

4.  The  judgement  was  for  the  grofs  fum  of 
185.  as  treble  damages,  for  the  lofs  of  faid  pork, 
without  afcertaining  the  real  value. 

5.  That  the  procefs  is  not  founded  on  any 
ftatute  of  Chis  ftate  ;  and  the  common  law  does 
not  empower  a  juftice  to  adjudge  treble  da- 
mages to  the  complainant,  as  was  done  in  this 
cafe. 

6.  That  faid  Juftice  adjudged  that  faid  Frif^ 
hie  Ihould  pay  a  fine  to  the  treafurer  of  the  town 
of  Hanvinton,  without  complaint  or  profccu- 
tion  by  any  p  Tblic  officer,  or  any  other  perfon, 
on  the  part  of  the  public. 

Without 


County  of  LiTeiiPifiLD,  Feb.  Te'rm-  ti^ 


0 


Without  argument,  the  judgement  of  the     ^"^Iv" 
Jujlice  was  reverfcd,  =!====i 

By  THE  WHOLE  Court.' The  complaint     Frlfbie 

on  which  the  arraignment  and  conviftion  was  ^g^injf 
had,  contained  no  dire6l  charge  of  the  theft,  Sutler.; 
but  only  an  averment  that  the  defendant  wa& 
fufpcftcd  to  be  guilty ;  nor,  indeed,  does  it  ap-^ 
pear  to  have  been  theft  that  he  was  even  fuf- 
pe8:ed  of,  but  only  a  taking  av/ay  of  the  plain- 
tiff's  property,  which  might  amount  to  no  more 
than  a  trcfpafs ; — and  his  being  found  guilty  of 
the  matters  alledged  againft  him  in  the  com- 
plaint, could  be  no  ground  for  fcntencing  and 
punifhing  him  as  for  theft. 

With  regard  to  the  warrant — Although  it  is 
the  duty  of  a  Juftice  of  the  Peace  granting  a 
fearch-warrant  (in  doing  which  he  afts  judici- 
ally) to  limit  the  fearch  to  fuch  particular  place 
or  places,  as  he,  from  the  circumftances,  fhall 
judge  there  is  rcafon  to  fufpe£l;  and  the  arreft 
to  fuch  perfon  or  perfons  as  the  goods  iliall  be 
found  with :  And  the  warrant  in  the  prefent 
cafe,  being  general,  to  fearch  all  places,  and  ar- 
reft  all  perfons,  the  complainant  fhould  fufpeftj 
is  clearly  illegal ;  yet,  how  far  this  vitiates  the 
proceedings  upon  the  arraignment,  may  be  a 
queftion,  which  is  not  ncceflkry  now  to  deter- 
'  mine  ;  as  alfo  the  fufficiency  of  feveral  of  the 
other  matters  affigned  in  error. 


BeEBE    <7^<rjn/2TRAFirORD. 

N  an  a6lion  of  debt  on  bond — the  defendant,  a  piicst 
after  oytVy  fet  forth  a  condition,  i^  the  fol-  J^'^rblti'^J^^ 
[owing  words,  viz. — "  It  is  covenanted  between  ©ti,  a  crd*- 
"  the  faid  parties,  to  refer  and  fubmit  the  whole  if.J^'^^^ 


I 


shall  nstVJri^tethe  avard,  that  the  damages  a waiHed  arc  bkndc4 
irith  oth^r  4ama^<s  beiuji^ing  irh«U/  t9  ^  paronc. 


*'  matter  J>is  infant 

child,  a^d  it 


2lS 
1787^ 

Be«be 

again/I 
TfaiFord. 


CouMfV  OF  LiTCHriELDJ  Feb.  TetimI' 

'^.mdLtitr  fin  every  conjideraiion)  of  the  injur]^ 
**  done  to  the  private  parts  of  £,  B.  jun.  fon 
"to  E.  B.  aforelaid,  hy  S.  B.  fon  to  the  wife  of 
"  W.  T.  fome  time  in  November  inftant,  to  be 
"  finally  fettled  and  determined  by  the  arbitrai- 
*Vment  and  award  of  MefTrs.  A".  H.  J.  B.  and 
**  N.  B.  Said  arbitrators  to  determine  what 
*'  damages  faid  Traff'ord  fli all  allow  faid  Beebe, 
"  for  the  injury  aforefaid,  &€.'* — And  con- 
cluded nul  fait  agard. 

Reflicatioiu — That  true,  the  obligation  was 
given  to  compel  the  defendant  to  abide  and 
perform. the  award  of  faid  arbitrators,  relative 
to  a  mod  cruel  and  barbarous  injury,  done  and 
committed  by  S,  B,  fon  to  the  wife  of  the  de- 
fendant, a  young  man,  about  nineteen  years  of 
age,  upon  the  private  parts  of  the  body  o{  E.  B. 
fon  of  the  plaintiff,  atbout  eight  years  of 
;  which  the  plaintiff  and  defendant  did, 
thcmfelves  and  faid  minors,  fubmit  to  faid 
arbitrators,  for  them  to  confider  and  award  up- 
on in  every  point  of  view,  as  it  concerned  the 
"  plaintiff  and  his  faid  child,  and  the  faid  6'.  B, — 
That  the  faid  arbitrators  took  upon  themfelves 
the  burthen  of  hearing  the  parties,  and  award- 
ing on  the  matters  fubmitted ;  and  that  they  did 
make  and  publifli  the  following  award,  viz.  "We 
*^the.fubfcribers,  being  appointed  arbitrators,  in 
*'  a  matter  of  difference  between  E.  B.  for  him-. 
^*  felf  and  his  fon  E,  B.  jun.  a  minor,  on  the 
-**  one  part ;  and  W.  T,  in  behalf  of  S,  B.  a  mi- 
**  nor,  and  fon  of  the  w  ife  of  faid  W.  T,  as  na- 
**  tural  guardian  to  faid  S,  B  on  the  other  part : 
*V  Wiiich  matter  of  difference  is  touching  and 
*Vconcernirig  an  injury  done  by  faid  S.  J5.  to 
**  the  private  parts  of  faid  E,  B,  jun.  and  the 
**  cofl  and  damac^es  that  have  arifen  in  confc- 
*'quencc  of  faid  injury,  for  furgeons,  nurling, 
"  (&c.  and  for  the  pain,  diftrefs,  and  difability 

-  of 


lun 
for 


Trafforic 


Co'UNTY  o?  Litchfield,  Fes.  Term.  fti^ 

,^^  of  faid  E.  B,  jun.     The  parties  having  con-     ^""YtST 
**'  vened,  &c.  and  heard  refpe^ting  the  premifes>     -^====^ 
^^  &c.  We  do  award  and  determine,   that  faid      Bcebe 
**  FF.  r.  fhaii  give  and  pay  to  faid  E.  B,  for     ^^ain/ 
•*  the  purpofe  arorciaid,  tiic  fum  of  iioL** 

That  the  defendant  hath  negleOied  to  comply 
with  and  perform  faid  award ;  and  that  the 
plaintiff,  in  behalf  of  himfelf  and  fon,  hath  aU 
ways  flood  ready  to  comply  with  faid  aw^ard^ 
and  to  accept  the  fum  awarded,  in  full  fatisfac- 
tibn  of  faid  injury. 

To  this  there  was  a  demurrer,  and  joinder 
in  demurrer. 

And  the  exception  taken,  was — That  the  a- 
ward  fet  forth  in  the  replication  is  void. 

1.  Bccaufe  the  arbitrators  have  awarded  a 
fum  in  grofs  to  the  parent,  for  his  lofs  of  fer- 
vice,  and  for  the  pain  and  difability  of  the  in- 
fant; which  ought  to  have  been  awarded  to 
each,  in  proportion  to  their  fevcral  damages, 
that  it  raight  be  pleadable  in  bar  of  any  future 
demand  on  the  part  of  the  infant. 

2.  Becaufe  the  fum  given  by  the  award  rs 
not  faid  to  be  in  difcharge  of  the  injury  com- 
plained of; — therefore,  it  makes  no  end  of  the 
controverfy. 

By  the  whole  Court.— —It  appears,  by 
the  fubmififion,  that  it  was  the  intention  of  the 
parties,  to  refer  the  whole  matter  of  the  dama- 
ges done  by  the  trefpafs,  on  the  body  of  the 
infant,  to  the  decifion  of  the  arbitrators ;  and 
the  award  is  correfpondent  to  the  fubmiffion.: 
And  the  plaintiff  had  rignt  to  receive  fatisfac- 
tion  for  the  trgfpafs  done  to  bis  fon  (as  he  was 
his  Katural  guardian)  as  well  as  for  the  damage 
done  ^to  himfelf;  and  it  k  immaterial  whetheT 
the  damage  w^as  afcertained  by  .agreement. of 
the  parties,  or  award  of  arbitrators :  Therefore, 
a  recovery  in  tbi^  cafi:^  will  be  a  bar  of  any  ac- 
I)  d  tiop?^ 


2i8  County  6^  Litchfikld>  Feb.  Term. 

"^iTsT.  ^^^^  ^^^  ^^^^  trefpafs,  and  the  awarding  entire 

e=af=rx:=  damages  cannot  prejudice  the  defendant. — So 

Bcebe  judgement  was  for  the  plaintijfF. 


Hawley  agahift  Castle  and  Others, 

THIS  was  a  writ  of  partition,  on  a  tenancy 
in  common. After  a  verdi6l  for  the 

plaintiff, '  the  defendarits  moved  in  arreft  of 
judgement,  for  the  iniiifficicncy  of  the  decla- 
ration. And^ 

By  the  whole  Court. -The  declara- 
tion is  ill.— The  counting  is  of  a  joint-tenancy, 
or  tenancy  in  com.mon.  The  conckifion  and 
demand  is — "  That  the  defendarits  refufe  to 
"  make  partition  thereof,  and  prevent  the  fame 
*'  being  done — to  the  plaintiff's  damage  70/. — 
"  and  for  the  recovery  thereof,  with  coft,  this 
"  fuit  is  brought,  &c". — Here  is  no  demand  of 
partition,  without  which  the  action  is  nugatory 
and  vain.  This  omiffion  is  not  cured  by  ver- 
dia. 

The  defendants  then  moved,  that  coft  might 
be  taxed  in  their  favour.  But, 

By  the  Court. It  cannot ;  for  the  de- 
fendants might  have  taken  this  advantage,  by 
demurrer,  at  the  beginning  of  the  fuit ;  and 
after  having  led  the  plaintiff  through  a  trial,  on 
the  merits  of  the  caufe,  if  the  defendants  will 
then  defeat  him,  by  a  defe6l  which  they  might 
have  availed  themfelves  of  at  an  early  ftage  of 
the  fuit,  they  fhall  not  be  allowed  their  coft. — 
This  rule  has  been  fettled  on  full  deliberation. 


Nichols 


County  of  Fairfied,  Feb.  Term,  219 

Nichols  againjl  Hillyer,  ^^ 

IN  this  cafe,  the  depofition  ofHezekiah  Thorn-  ^^.f"^^ 
JoYiy  Efq.  was,  by  the  defendant,  offered  in  ^'^->'^''' 
evidence.— The  deponant  lived  more  than 
twenty  miles  diilant  from  the  place  of  trial, 
but  within  feventeen  miles  of  the  adverfe  par- 
ty. The  depofition  was  taken  one  week  before 
the  time  of  trial,  at  Litchfield,  more  than  twen- 
ty miles  diftant  from  the  adverfe  party,  who  was 
neither  notiiied  or  prefent :  The  deponant  be- 
ing an  attorney  of  Litchfield  county,  was  there 
attending  court  when  his  depofition  was  taken. 

It  was  objefted,  that  this  depofition  was  not 
admiffible  widiin  the  ftatute  for  taking  affidavits 
out  of  court;  which  is,  that,  **  Forafmuch  as  it 
"  is  neceifary  that  witnefles  in  civil  caufes  be 
**  fworn  out  of  court,  when  by  reafon  of  their 
<*  going  to  fea,  living  more  than  twenty  miles 
<*  diftant  from  the  place  where  the  caufe  is  to 
**  be  tried,  age,  ficknefs,  or  bodily  infirmity, 
**  they  are  rendered  incapable  of  travel,  and  of 
*^  appearing  at  court.  To  the  intent  thereof, 
*^-that  all  witnefles  may  impartially  and  indif- 
^*  ferently  teilify  their  certain  knowledge,  and 
^^  the  whole  truth  in  the  caufe  they  are  to  ipeak 
**  unto  ;  be  it  enacted,  that  for  either  of  the 
'^  reafons  aforefaid,  and  not  otherwife,  everv 
^^  Aililtant  or  juftice  of  the  Peace  may  take 
*^  affidavits  out  of  court,  fo  as  notification, 
"  with  reafonable  time,  be  firft  made  out  and 
*'  delivered  to  the  adverfe  party  (if  within 
^*  twenty  miles  of  the  place)  or  left  at  the 
**  place  of  his  dwelling  or  ufual  abode)  to  be 
"  prefent  at  the  time  of  taking  fuch  affidavit, 
^'3fhe  think  fit.'' 

But  the  objection  was  ovcr^ruJed.— For, 


D  d  2 


L-5Y 


Nichols 
againj} 
llillv«r. 


County  of  Fairpiel 


D^  TEBv 


TzRivf. 


By  THE  Court. The  depofition  appears 

to  have  been  fairly  taken,  and  no  fraud  prac- 
tifed  by  the  party  who  took  it.  Although  the 
taking  might  have  been  omitted  until  the  de- 
ponant  returned  home  from  court,  when  the 
adverfe  party  mud  have  been  notified,  and 
would  have  had  the  fienefit  of  crofs-examina- 
tion  ;  yet  it  appears,  that  by  fuch  delay  the  de- 
fendant would  have  been  in  danger  of  lofing. 
this  teftimony  ; — it  is  therefore  within  the  rea- 
fon  of  the  ftatute^  and  may  be  read. 


Afciiefdcias 
is  a  judicial 
writ,  iflulng 
for  he  pur- 
pofe  of  car- 
rying ilir« 
efFcft  an  an- 
tecedent 
judgement  j 
at  ous;ht, 
therefj.e, to 
iflue  "roni 
the  co'jrt 
rendering 
fuch  judge- 
menr,  vherc 
she  rec.rds 
of  it  remain. 


Jarvis  againJl'R^TiiBVKiii 

THIS  was  2l  fcire  facias,  againft  the  defen- 
dant (being  adminiftratrix)  to  fhow  caufe 
why  execution  fhould  not  go  out  de  bonis  pro- 
priis.  The  original  judgement  was  by  the 
court  of  common  picas,  and  xh^fcire  facias  if- 
fued  from  a  Juftice  of  the  Peace. 

The  defendant  pleaded  in  abatement — That 
this  being  a  judicial  writ,  ought  to  have  iffued 
from  the  clerk  of  the  court  on  whofe  records 
it  was  founded,  and  to  whom  it  was  made  re- 
turnable. And, 

By  the  whole  C6ur.t»=— ^ — The  plea  in 
abatement  is  fufficient. — A  fcire  facias  is  a  ju- 
dicial writ,  iffued  for  the  purpofe  of  fubftanti- 
ating  and  carrying  into  effe6l  an  antecedent 
judgment ;  and  ought,  therefore,  to  iffue  from 
the  court  rendering  fuch  judgement,  and  where 
the  records  of  it  remain.  And  it  is  according 
to  the  courfe  of  the  common  law  of  England, 
and  the  eftablifhed  praftice  of  this  ftate,  and 
according  to  the  provifion  of  its  ftatutes,  in  all 

cafes 


County  OF  FAiRriELD,  Feb.  Term.  ^^.i 

cafes  where  they  have-  fpecially  provided  for     ^~^T^ 
writs  o{  fcire  facias y  that  fhould  thus  iffue,  and     =~i 
not  from  another  court,  or  Juilice  of  the  Peace,      Jarvis 
as  in  the  prcfent  cafe.  againji 

Rathbarn. 


Allen  ani  Qthers  againjl  Hoyt. 


inft  fel 


"!^HIS  was  an  action  of  diffeifin,    brought  ^^^. 

.  by  the  inhabitants  of  three  ecclefiaftical  ilngcoVrV* 
focietics,  in  Fairfield  and  Norwalk,  for  certain  vc  tcdtia-i 
lands  defcribed,  which  were  conveyed  to  the  fofferisno 
plaintiffs  by  virtue  of  an  ad  of  the  legiflature.  \^^^f^^^\i 

The  defendant  pleaded  in  bar- — 7'hat  on  the  the  carv;» 
8th  day  of  April,  A.  D.  T746,  Thomas  Hoyt,  "^l^^!,^ 
late  of  Danbury  deceafed,  owned  and  v/as  well  t^  he^o- 
feized  of  the  demanded  premifes,  as  a  good  in-  f^^e ftlt^e'  "^ 
d^feafible  eftate-  in  fee-fimple  ;  and  being  fo 
feized  and  poffeffcd,  conveyed  the  fame  to  the 
defendant,  by  a  certain  deed  of  gift,  dated  the 
8th  day  of  April,  1746;  which  deed  w^as  well 
executed,  legally  acknowledged  and  record- 
ed :  Whereby,  on  the  8th  day  of  April,  1746, 
the  defendant  became  the  rightful  ov/ner  and 
proprietor  of  faid  demanded  premifes ;  and 
afterwards^  on  the  fam.e  day,  entered  into 
and  became  feized  and  polTeffed  thereof  in 
fee-fimple,  and  has  ever  fince  been  fo  feized 
and  poffeffed,  and  has  taken  the  whole  ren;s 
and  profits  thereof  to  himfelf,  holding  out  there- 
from all  other  perfons  whatever  : — That  on 
the^  6th  day  of  September,  1784,  John  Law-- 
rence,  Efq.  as  treaiurer  of  this  flaie  (the  de- 
fendant then  being  in  the  quiet  and  peaceable 
poffeffion)  gave  and  executed  his  deed  of  tlic 
prcmifes  to   the  plaintiffs,  who,  bv  colour  of 


a^2  County  of  Faiblfiild,  Feb.  Term. 

'^^'^I^^y     faid  deed,  entered  into  faid   demanded  pre- 

~=^-  - —    mires,    the  defendajit  then  being  in  the  khpn 

Allen,  &c.  and  poffeffion  of  the  fame ;   and  the  dcfend^^t 

agaht^      thereupon  deforced  the  plaintiifs,  as  well  he 

might. 

Replication. — Acknowledging  the  defendant 
to  have  derived  title,  as  fet  forth  in  his  plea; 
but  that,  on  the  20th  day  of  April,  1777,  be- 
ing feized  and  poifeffed  thereof,  did  volun- 
tarily go  to,  join  with,  and  put  himfelf 
under  the  protedion  of  the  enemies  of  the 
United  States,  then  at  open  war  with  the  faid 
flates  ;  and  did  continue  with,  and  under  pro- 
teftion  of  faid  enemies,  until  the  24th  day  of 
June,  1778^  which  was  after  the  rihng  of  the 
General  Aifembly,  at  their  annual  feffion  in 
1778:  That  on  the  lOth  day  of  February, 
1779,  the  felefcl-men  of  the  town  of  Danbury, 
agreeably  to  the  ftatute  law  of  this  ftate,  in  fuch 
cafe  provided,  made  complaint  to  Tfiaddeus  Be- 
QiediH,  Efq.  then  a  Juftice  of  the  Peace  for  faid 
county,  againft  the  defendant,  that  the  defen- 
dant, fince  the  firft  day  of  April,  1777,  had  join- 
ed the  enemies  of  the  United  States  of  Amicrica, 
and  continued  to  hold  protection  under  faid  ene- 
mies, until  after  the  riling  of  the  General  Affem- 
bly,  in  May,  1778:  And  that  on  faid  10th  day  of 
February,  1779,  there  were  goods,  chattels,  and 
real  eftate  in  this  ftate,  belonging  to  the  defen- 
dant ;  and  thereupon  the  faid  Thaddeus  Benne- 
diH,  Efq.  did  iffue  a  writ  againft  the  defendant, 
in  the  following  words,  viz. — "  To  the  fiieriff 
^^  of  Fairfield  county,  his  deputy,  or  either  of 
*^  the  conftables  of  Danbury,  in  faid  county, 
**  greeting  : — Whereas  the  feleft-men  of  the 
"  town  of  Danbury,  have  informed  me,  the 
*^  authority  fubfcribing,  Juftice  of  the  Peace- 
"  for  faid  county,  and  given  me  to  underftand, 
^'  that  Samuel  Hoyt.  of  laid  Danburv,  fince  the 

firft 


COUNTV    OF    FaIRFIELDj    Feb.    TSRli;  2Sg 

^''^firil  day  of  April/  1777,  has  joined  the  ene-     "iTgyT 

'^  mies  of  this  and  the  United  States  of  Ame-     ==^=-=:^ 

"  rica^  and  continued  to  hold  prote8;ion  under  Allen,  Sic. 

*^  them,  until  after  the  rifmg  of  the  Affembly,      ^^^>{/^ 

*'  in  May,    1778  ;  and  that  there   are  goods^        *^^  * 

"  chattels,  and  real  eftate,  in  this  ilate,  belong- 

*Mng  to  faid  Samuel  Hoy i; :    Thefe  arc  there<» 

**  fore,  in  the  name  of  the  Governor  and  Com- 

*'  pany  of  the  ftate  of  ConneQicutj  to  require 

**  you   to   fummon  the  faid  Samuel  to   appeal* 

^*  (if  he  fee  caufe)  before  the  county  court,  to  be 

"  holden  at  Fairfield,  on  the  third  Tuefday  of 

**  April  next ;  then  and  there  to  fhew  reafort 

"  (if  any  he  have)  why  his  faid  eftate  fhould 

^  not  be  confifcated,    and  difpofed  of,  for  the 

^*  ufe  of  this  ftate.  Hereof  fail  not;  but  of  this 

"  writ,  with  your  doings  hereon,  make  due  re- 

"  turn,  according  to  law.     Dated  at  Danbury^ 

^'  the  10th  day  of  February,  1779. 

^^  Thaddeus  BenediB^  Juftice  of  Peace.*^^ 

Which  writ  was  duly  ferved  on  the  defen^ 

dant ;  and  fo  an  aftion  was  commenced  againft 

the  defendant,  and  the  fame  was  duly  had  and 

entered  in  faid  county  court  •  and  thereupon 

faid  county  court  did  render  judgement  againil 

the  defendant,  for  the  confifcation  of  his  eftate^ 

as  may  appear  by  the  records  of  faid  court^ 

which  are  in  the  words  following,  viz. — ^^  At  a 

"  county  court,  held  at  Fairfield,  within  and 

"  for  the  county  of    Fairfield,   on   the  third 

"Tuefday  of  April,  1779:    ¥/hereas  thefe-* 

**  leQ-men  of  the  town  of  Danbury,  in  Fair- 

**  field  county,  did  inform  Thaddeus  BenediB^ 

"  Efq;  Juftice  of  the  Peace  for  faid  county, 

"  that  there  is  real  and  perfonal  eftate,  in  this 

"  ftate,  which  belongs  to  Samuel  Hoyt^  of  Dan- 

"  bury,    who  hath  joined  the  enemies  of  the 

*^  United  States  of  America,  and  continued  to 

'*  hold  protection  under  them.     Said  Hoyt  was 

fummoned 


224  '  County  of  Fatrfielb,  Tzb.  Term. 

^TSt^  "  fummoned  to  appear  at  this  court,  to  fho\v' 
■.Tz=-'~—rr,  "  reafon  why  his  faid  eflate  fhould  not^be  de- 
Allcn,  &c.  "dared  forfeit,  <&c.  as  per  writ  on  file,  dated 
^';'V  "  f'ebruary  lOth,  1779.  The  faid  Hoyt  was 
'^T^»  ".called  at  this  court,  and  made  anfwer  to  faid 
**  information  :  Thereupon,  this  court  having 
"  heard  the  evidence  relative  to  faid  HoyVi 
^'joining  himfelf  with  the  enemy,  as  aforefaid, 
**  and  duly  confidered  thereof,  are  of  opinion, 
"  that  the  real  and  perfonal  eftate  of  the  faid 
,,**  Hoyt  be,  and  the  fame  is  declared  forfeit,  to 
*^  and  for  the  ufe  and  benefit  of  this  ftate,  and  the 
'*  fame  be  further  dealt  with  according  to  law.** 
Thereupon,  and  by  force  and  virtue  of  faid 
judgement,  the  Governor  and  Company  of  the 
itate  of  Connefticut  became  the  rightful  owners 
and  proprietors  of  the  demanded  premifes,  and 
were  thereof  feized  and  poffeffed,  and  continu- 
ed to  own  and  poflefs  the  fame,  until  the  10th 
day  of  September,  1784  :— -That  at  the  General 
AJfemhlyy  held  in  Hartford,  on  the  fecond  Thurf- 
dayof  May,  A.  D.  1784,  upon  the  application 
of  the  plaintiffs,  fhowing  that  certain  grants  of 
fnonies,  made  by  the  General  Affembly,  to  the 
piaintifFs,  to  enable  them  to  erc6l  houfes  for  pub- 
lic worftiip,  in  their  feveral  focieties,  to  be  raif- 
cd  out  of  theTales  of  confifcated  eftate^,  in  faid 
county,  were  in  danger  of  being  defeated,  on 
account  of  the  difficulty  attending  the  falc  of 
faid  eflates:  And  thereupon  it  was  refolved  by 
faid  AJfemhly,  that  faid  focieties  might  receive 
deeds'from  the  treafurer  of  this  ftate,  of  confif- 
catcd  lands,  to  the  value  of  1500/.  in  fatisfaBion 
of  faid  grailts  of  monies;  faid  lands  to  be  ap- 
pra'ifed  by  three  gentlemen,  in  faid.r^folve  nam- 
ed, and  their  certificate  of  the  value  and  de- 
Icription  thereof  to  be  returned  to  the  treafurer. 
All  which  was  dtily  done  and  perfornicd..;  and 
^     on  tl;e  6th  day  of  September,  1784,  John  Law^ 

rcnce^ 


County  gf  Fairfield,  Feb.  Term*  225 


rencey  Efq.   trcafurer  of  this  ftate,  purfuant  to        1787^ 
faid  refolve,  did,  by  a  well  authenticated  deed,     ===== 
under  his  hand,  convey  the  demanded  premifes  Allen,  &c. 
to  the  plaintiffs,  in  fee-fimplc;  and  that  by  vir-      ^^'^^'f 
tue  thereof,   they  became  well  feized  and  pof-  ^  " 

feffed  of  the  premifes,  and  did  enter  thereon, 
and  continued  therepf  fo  feized  and  poffeffed 
until  fome  time  after;  and  before  the  date  of 
the  plaintiff's  writ,  the  defendant  did  enter 
thereinto,  and  unlawfully  diffeizc  and  difpof- 
fefs  the  plaintiffs  thereof,  as  in  their  declaration  .* 
is  dllcdged. 

To  which  there  was  a  demurrer,  and  joinder 
in  demurrer. 

The  defence  refled  principally  on  two  points* 

1.  That  the  judgement  of  confifcation  recited 
in  the  replication  (on  which  the  plaintiffs  found 
their  claim)  was  a  mere  nullity,  and  void  upon 
the  face  of  it ;  for  it  did  not  appear  from  the 
record  that  the  fa6ls  were  proved,  or  that  the 
defendant  was  found  guilty,  without  which  no 
judgement  could  be  rendered ;  and  for  fuch 
defe6i  it  was  not  neceffary  to  obtain  a  reverfal^, 
for  it  was  as  if  no  judgement  had  been  render^^ 
ed. 

2.  That  by  the  flatute  of  this  ftate,  againft  fel- 
ling controverted  titles,  where  the  feoffor  is  not 
in  poffeffion  at  the  time  of  the  conveyance,  it 
is  enaQed — "  That  all  bargains,  fales,  leafes, 
"  or  other  alienations  for  years,  life,  lives,  or 
**  forever,  or  for  any  other  term  or  time  what- 
**  foever,  of  any  lands,  tenements,  or  heredita- 
**  ments,  within  this  colony,  whereof  theleafor, 
**  vendor,  grantor,  or  the  perfon  that  doth 
"  othcrways  execute  any  inftrument  in  writ-= 
•Mng,  for  the  transfering  any  right  or  title  to 

*any  lands,  tenements,   or  hereditaments,  to 

"  another  perfon  or  pcrfons  (the  prefent  pof- 

"  fcifor  thereof  only  excepted)  is  diffeized,  or 

E  c  ''  outcd 


226  County  of  Fairfield,  Fes.  Term. 

"^TSt^     "  outcd  of  the  poffefTion  thereof,  by  the  entry, 
======     "  poffeflion,  or  improvement  of  any  other  per- 

Allen,  &c.  ^*  fon  or  perfons ;  or  that  does  claim  or  chal- 

againfi     «  i^^ge  to  havc  right  or  title,  to  any  lands,  tc- 

Hoyt.      cc  nements,  or  hereditaments,  by  force  and^vir- 

"  tue  of  any  title,  or  claim,  alien  from,  and  in 

*'  oppofition  to  the  title  granted  by  the  royal 

**  charter  to  this  corporation,  and  not  warrant- 

"  ed  by  the  laws  of  this  colony,  fhall  be  null 

"  and  void,  and  of  no  cffe6l  in  the  law,  for 

"  the  transfering  and  conveying  any  of  the 

^*  pretended   rights  or  titles  above  defcribed, 

^*  to^ny  perfon  or  perfons  whatfocver." 

And  that  this  ftatute  is  exprcfsly  againft  fuch  a 
transfer  as  the  one  defcribed  in  the  plaintiffs 
replication,  on  which  the  plaintiffs  found  their 
t  title. 

By  the  whole  Court.- It  appears  by 

the  record,  that  the  judgement  of  the  county 
court,  declaring  all  the  cftate  of  the  defendant 
forfeited  to  the  ftate  of  Connefticut,  was  ren^ 
^  dered  on  a  regular  and  legal  procefs,  and  on 
due  enquiry  into  the  faQs,  by  a  court  that  had 
jurifdi6lion  of  the  caufe.  And  although  it  is 
not  explicitly  faid  in  the  record,  that  the  court 
found  the  fa6ls  alledged  in  the  information 
proved,  yet  it  is  ftrongly  implied  in  thefe 
words,  viz.  "  This  court  having  heard  the 
*'  evidence  relative  to  faid  ^o^'fs  joining  him- 
**  felf  as  aforcfaid,  and  confidcred  thereof,  are 
**  of  opinion,  that  the  real  and  perfonal  eftatc 
*^  of  faid  Hoyt  be,  and  the  fame  is  hereby  de- 
*^  clared  forfeit,  &c. — Therefore,  the  judge- 
ment cannot  be  confidered  as  void,  but  valid 
in  law  while  unreverfed,  notwithflanding  the 
informality  of  the  entry,  as  to  the  finding  of 
the  fa6ls. 

As  to  the  fecond  exception — That  the  trea- 
furer's  deed  to  the  plaintiffs  is  void,  becaufe 

the 


County  of  Fairfikld,  Fee.  Term.  227 

the  defendant  was  in  poffeffion  of  the  land  when    ^^87? 

it  was  given. ^If  the  ftatute  for  preventing     ===:= 

frauds  and  quarrels  in  fales  and  alienations  of  Alien,  &c„ 
land,  Sec.  extended  to  the  government  of  the      ^S^^n^f 
ftate^  this  cafe  does  not  come  within  the  pur-       *^^^° 
view  of  the  ftatute,  becaufe  the  title  of  the  ftate 
was  derived  from  the  defendant  by  a6l  of  law  ; 
and  therefore,  from  the  time  of  the  forfeiture, 
the  defendant  mull  be  confidered  as  poffeffing 
the  land  under  the  ftate,  as  tenant  by  fuffer- 
ance,  unlefs  an  adual  difleiiin,  and  holding  out 
the  ftate  by  force,  were  fiiown ;  which  is  not  in 
this  cafe,  but  only  a  poffeffion,  and  receipt  of 
the  profits  of  the  land.— But  it  cannot  be  fup« 
pofed  the  ftatute  was  ever  meant  to  be  extend- 
ed to  the  government  of  the  ftate,  who  cannot 
be  fuppofed  ever  to  be  guilty  of  the  criminal 
and  mifchievous  practices  which  the  ftatute  was 
made  to  prevent.— Judgement  was  therefore 
for  the  plaintiffs. 

This  judgement  was  afterwards  afjirmed  By  the  ■ 
fuprcmc  court  of  errors^  , 


^^  e  ^,  Marks 


228  County  of  New-Haven,  Feb.  Term. 


^ll 


Marks  againjl  Johnson, 


A  pcrfon        yjH  RROR  from  the  court  of  common  pleas. 


pcrtyVas^     -"^  The  defendant  in  error,  being  executrix 
for\hc  bcifc'  ^^  ^^^  ^^^  ^^^^  ^^^  teftament  of  jfabcz  Thomfon, 
fit  of  the        deccafed,  brought  her  aftion  on  note,  againft 
fiabictofh"  Marks;  to  which  he  pleaded— That  fubfequent 
fubieasof     to  his  giving  the  note,  viz.  in  the  year  i779> 
ftate*fllr  his  proCcfs  was  duly  inftituted  againft  him,  for  hav- 
aniecedent    ing  joined,  and  put  himfelf  under  the  protcftion 
contraas.      ^^  ^^^  enemies  of  the  United  States :    That  all 
his  eftate  was  adjudged  to  be  forfeit  to  this  ftate, 
and  was  ordered  to  be  confifcated  accordingly  : 
That  commiffioners  were  duly  and  legally  ap- 
pointed to  receive  and  examine  all  claims  up- 
on faid  eftate  ;  and  that  the  plaintiff  (now-  de^ 
fendant  in  error)  did  exhibit  the  note  on  which, 
&c.   to  faid  commiffioners,  for  them  to  allow,; 
and  that  they  did  allow  the  balance  due  on  faid 
note  againft  faid  eftate,  being  12/.  185.  2d,  and 
afterwards  duly  made  their  report  of  the  allow- 
ance of  faid  debt,  as  well  as  the  other  debts 
againft  faid   eftate,    to  the  court  of  probate, 
which  report  was  accepted  by  faid  court.     All 
which  doings  were  previous  to  the  late  treaty  of 
peace,  between  the  United  States  and  Great- 
Britain.  V 

Replication, — That  the  whole  of  faid  confif- 
cated eftate,  which  came  to  the  hands  of  the 
adminiftrator,  did  not  amount  to  a  fum  fuffici- 
ent  to  pay  more  than  gfi,  on  the  pound,  of  the 
debts  that  were  claimed  and  allowed  on  faid  ef- 
tate. And  the  plaintiff  never  received  any 
more  than  5/.  135.  9^.  being  her  whole  divi- 
dend, out  of  the  eftate  of  the  defendant,  on  faid 
note  ;  and  that  the  refidue  ftill  remains  unpaid; 
and  that  flie  did  not  receive  faid  fum  in  payment 
and  difcharge  of  faid  debt;  That  the  defendant, 

at 


County  of  New-Haven,  Feb.  Termo 

at  the  time  of  his  going  to  the  enemy,  held  and 
detained  hisbooks,  notes,  and  papers,  which  fe- 
cured  to  him  the  payment  of  large  fums  of  mo- 
ney, which  he  hath  never  delivered  up,  nor 
has  the  adminiftrator  ever  been  able  to  colleQ: 
the  monies  due  thereon,  which  would  have 
enabled  him  la  have  paid  the  whole  of  the 
plaintiff's  demand  allowed  by  the  commiffion- 
ers:  And  the  whole  of  the  eftate  of  which  the 
defendant  was  proprietor,  at  the  time  of  his 
going  to  the  enemy  as  aforefaid,  hath  never 
come  into  the  hands  of  the  adminiftrator. 

To  this  there  was  a  demurrer,  and  joinder 
in  demurrer,  and  judgement  by  the  court  of 
common  pleas,  was  for  the  plaintiff. 
Errors  afligned:- — 

1.  That  it  appears  by  the  record,  that  all 
the  eftate,  both  real  and  perfonal,  of  the  plain- 
tiff in  error,,  was  conhfcated,  and  commiffion-- 
ers,  and  an  adminiftrator  appointed  thereon  : 
He  was  confidcred  as  dead  in  law,  and  therefore 
an  aftion,  after  faid  political  death,  could  not 
be  maintained  againft  him  for  any  breach  of 
contraQ,  or  for  any  injury  happening  before 
faid  death. 

2.  That  it  appears  by  the  record,  that  the 
defendant  in  error  recovered  part  of  her  debt 
out  of  faid  confifcated  eftate ;  fhe  therefore 
made  her  elcdion  to  recover  it  in  that  mode,  and 
may  not  now  fue  the  perfon  of  the  plaintiff  in 
error,  for  the  recovery  of  the  remainder. 

3.  That  it  alfo  appears,  that  there :  were 
book  debts,  bonds  and  notes,  in  the  hands  of 
the  plaintiff  in  error,  which  Y;ere  alfo  conhf- 
cated  with  faid  other  eftate,  fufficient  to  pay 
the  whole  of  faid  demand^  but  the  defendant 
in  error  hath  never  ufed  any  legal  or  coerfivc 
meafures  to  obtain  the  famco 

Mr, 


2-29 

Marks 
againji 
Johnfon. 


230  County  02?*  New-Haven,  Feb.  Ter^i, 

^TgT"         Mr.  Ligerfol,  for  the  plaintiff  in  error,  con^ 
: —  ■  J-i     tended — That  after  the  attainder  and  judge- 
Marks     mcnt  of  confifcation,  the  plaintiff  Avas  cz^ii/Ucr 
again^     mortuus,  and  that  no  aclion  for  any  antecedent 
Johniofi.    contra6i,  or  trcfpafs^  would  lie  againft  him  per- 
fonally  :  That  the  law  in  all  rcfpe6ls  treats  him 
as  a  dead  pcrfon ;   his  eftate  is  proceeded  with 
as  fuch ;    an  adminiftrator  is   appointed,  and 
commiilioners,  to  examine  the  claims  upon  the 
eftate.     It  is  abfurd,  that  the  debtor  ^A'ho  con- 
trafted  fhould  be  called  upon  perfonally,  after 
his  eftate  has  been  thus  fettled.     He  has  with- 
drawn from  this  political  fociety^  as  much  as  if 
he  was  naturally  dead.     The  whole  of  his  ef- 
tate being  confifeated,  the  adminiftrator  is  the 
only  perlbn  to  be  called  upon  by  the  creditor; 
and  may  undoubtedly  recover  fuch  eftate  as 
hath  not  yet  come  to  his  hands. 

Mr.  Hillhoufey  for  the  defendant  in  error, 
contended-— That  the  ftatute  which  fubje6led 
the  eftate  of  Marks  to  confifcation,  was  intend- 
ed as  a  punifhment  for  a  political  offence  ;  but 
was  it  to  operate  in  nature  of  a  ftatute  of  bank- 
ruptcy, and  difcharge  the  debtor  from  all  an- 
tecedent contraQs,  it  would  become  a  great 
benefit,  inftead  of  a  punifhment;  and  more  ef- 
pecially,  as  the  judgement  of  confifcation  ex- 
tended only  to  fuch  property  as  was  within  the 
jurifdiftion  of  this  ftate. 

By  the  whole  Court."-  The  defen- 

dant's lofs  of  property,  by  forfeiture  and  con- 
fifcation, does  not  difcharge  him  of  his  debts ; 
nor  does  it,  that  they  have  bctn  admitted,  in 
favour  to  the  creditors,  as  a  lien  upon  the  pro- 
perty confifcated.  The  creditors  are  at  liber- 
ty to  wave  that  benefit,  or  having  availed  them- 
felves  of  it,  as  far  as  it  would  extend,  ftill  for 
the  remainder,  to  fue  the  debtor  with  whom 
they  contraQed.     The  defendant  did  not,   by 

the 


County  of  Nev/-Haven,  Feb.  Term,  ■  '231 

the  aH  of  confifcation,  become  civiliter  mortuus^     ^"tStT 
as«^hath  been  urged,  but  was  ftill  capable  of  ac~     e=--r— 
quiring  property,  and  of  holding  what  he  then      Marks 
might  have  out  of  the  Hate  :  Nor  was  the  con-     (^g^'^'J^ 
lifcation  intended  for  his  benefit,  and  to  defeat     Jo^^^<3«' 
his  creditors;  but  it  flill  leaves  him  perfonally 
liable  for  his  antecedent  debts,  until  they  are 
in  fa6l  paid. 

This  judgement  wa^  aftcrtoards  affirmed  in  the 
fuprcmc  court  of  errors. 


Bradley  againjl  Hitchcock. 

ON  a  decree  in  chancery,  for  the  foreclofure 
of  a  mortgage,  it  was  moved — -that  coft 
fhould  be  taxed  for  the  petitioner. 

By   the  Court.- Execution  ought  not 

to  iffue  againfl:  the  mortgagor  for  the  coft,  but 
it  fhould  be  taxed  by  the  court,  and  put  into 
the  bill  of  foreclofure  ;  for  it  is  equitable,  that 
the  mortgagor  fhould  pay  the  coil  of  this  appli- 
cation, as  well  as  the  debt,  before  he  be  allow- 
ed to  redeem.  The  land  cannot  be  fuppofed 
to  be  faleable  with  an  equity  of  redemption  at- 
tached to  it ;  therefore,  the  mortgagee  was  un- 
der neceflity  of  applying  for  a  foreclofure,  be« 
fore  he  could  ^njoy  his  title  ;  and  the  expence 
equitably  becomes  a  further  lien  upon  the 
land. 


f 

1^. 


s 


AMHEL 


232  CouNTY*OF  New-Haven,  Feb.. Term. 

Samuel   Barker,    Luther    Pace,  J-a^d 

^^,    '         Palmer,    Joseph    Wilford,    and  John 

againft  Blackstone,     agdinjl    John     Wilford, 

Wflford.         Adminijlrator  on   the    ejlate  of  Elnathan 

Hunt. 

HUNT  brought  his  a6lion  of  trefpafs  againft 
the  plaintiffs  in  error,  for  affault  and  bat- 
tery, and  obtained  a  verdi6l  for  20L  damage, 
before  the  fuperior  court,  Auguft  term,  1784, 
on  which  judgement  was  rendered. 

Pending  the  fuit.  Hunt  removed  into  the  pro- 
vince of  Nova-Scotia^  and  left  the  care  of  his 
caufe  to  his  friends  and  attornies.  After  final 
^judgement,  the  plaintiffs  in  error,  upon  a  re- 
prefentation  that  Hunt  W3.s  dead,  procured  the 
defendant  in  error  to  take  letters  of  adminif- 
tration,  and  then  brought  this  writ  of  error  de 
recordo  quod  coram  nobis  refidet^  alledging  an 
^rror  in  fa6l,  viz. — "  That  at  the  time  of  ren- 
*'  dering  faid  judgement,  Hunty  the  plaintiff  in 
**  faid  fuit,  was  dead,  and  the  a6lion  ought  to 
'*  have  been  difmifled,  there  being  no  perfon 
**  in  life  to  profecute  it ;  and  the  a6lion  being 
**  for  a  perfonal  injury,  cannot  by  law  be  pro- 
**  fecuted  after  the  death  of  the  party,  by  any 
**  reprefentative.'* 

The  defendant  in  error,  pleaded — That  faid 
Hunt  was  living  at  the  time  of  rendering  faid 
judgement. 

In  fupport  of  this  ifTue,  the  plaintiffs  in  er- 
ror produced  two  depofitions. — One  was  faid 
to  be  the  depofition  of  Ifaac  Hunty  taken  before 
a'Mr.  Hutchinfony  Juftice  of  the  Peace,  in  Suf- 
folk county,  (late  of  New- York,  teflifying  di- 
reQly  to  the  fa8:. — The  other  was  faid  to  be 
the  depofition  of  one  Smithy  alfo  taken  in  the 
*  ftate  of  New- York. — From  a  concurrence  of 

circumflances, 


County  OF  New-^-Haven^  Feb.  TerMo'  233 

1787, 


againfi 


circumftances,  there  appeared  to  be  fuch  un-     "~ 
certainty,  refpe6ling  the  death  of  Hunty   that     = 
the  court  rendered  no  judgement,  but  order-     Bark 
ed  a  continuance  to  this  time.  ^-'^ 

The  plaintiffs  now  fuffered  a  non^fuit, 

Mr.  EdwarduS  and  Mr.  Ingerfoly  for  the  de-^ 
fendant  in  error,  fuggefted  to  the  court- — Thafe 
the  defendant  had  made  unwearied  exertions 
to  fearch  out  the  truth  of  the  faQs  alledged  in 
the  writ  ,•  and  that  they  were  now  able  to  Ihow 
clearly  that  faid  Hunt  was  alive  at  the  time  of 
rendering  final  judgement,  and  even  at  that 
time  :  That  the  defendant  had  applied  to  the 
fecretary  of  the  ftate  of  New- York,  who  certi- 
fied, that  but  one  man  of  the  name  of  Hutchin^ 
Jon  was  in  the  commiilion  of  the  peace,  in  ei- 
ther King's  County,  Queen's  County,  or  Suf- 
folk ;  and  the  defendant  had  procured  that 
gentleman  to  be  now  prefent  in  court,  who  was 
ready  to  teftify,  that  at  the  time  the  depofition, 
faid  to  be  made  by  Ifaac  Hiinty  was  taken  be- 
fore him,  two  men  (hothjlrangers)  came  to  him  ; 
one  of  them  called  himfelf  .O^ry^er,  and  pre- 
tended to  be  a  plaintiff  in  the  prefent  fuit ; 
the  other  he  faid  was  IJaac  i^^^^^,  whom  he  had 
accidentally  found  at  that  place,  and  defired 
that  his  teftimony  might  be  taken,  which  was 
accordingly  done,  and  they  both  went  off  to- 
gether :— That  the  witnefs  who  ted ified  by  the 
name  of  Ifaac  Hunty  by  Mr.  Hutchinfon' s  def- 
cription,  muft  have  been  jofeph  Wilforcly  one 
of  the  plaintiffs  in  error  :  That  Wilford  went 
off  immediately,  upon  the  arrival  of  Mr.  Hiitch^ 
in/on  ;  fo  that  he  could  not  obtain  fight  of  him. 

The  defendant's  counfel  fuggefted  further — 
That  they  were  poffeiied  of  affidavits  (which 
had  been  procured  at  great  expence)  which 
prove  thdiV Barkery  and  the  witnefs  who  teftili- 
ed'by  the  name  oi Ifaac  Hunt^  landed  on  Long- 
Ff  Wand, 


234  County  of  New-PIaven,   Feb.  Term*. 

"^TgT^     Ifland,    from  a  boat.  Tome  miles   frbm   Mn 
=====     Hutchinfon'Sy  and  enquired  for  a  Juftice  of  tlie- 
Barker,     Peace ;  they  procured  a  guide,  and  went  to 
Sec.       yi^T^   Hntchinforiy  where  one  of  them  gave  the 
wflford.    depofition  i  they  then  returned,  and  lodged  all 
night  near  v/here  they  landed.     During  this 
time,  one  of  them  was  called  by  the  name  of" 
Barkery  and  the  other  was  not  mentioned  by 
any  name,  until  they  had  left  the  houfe  in  the 
morning,  and  returned  to   their  boat ;  a  boy 
w^as  then  prefent,  and  heard  Barker  frequently 
call  his  companion  by  the  name  of  IVilford, 

That  the  defendant  alfo  had  affidavits  from 
two  men,  being  the  only  perfons  of  the  name 
o^  Ifaac  Hunt  in  thofe  three  counties,  who  tef- 
tify  that  neither  of  them  ever  depofed  before 
Mr.  HiitchinfoUy  or  any  other  authority,  con- 
cerning this  cafe  :  Alio,,  that  the  defendant  had 
incurred  very  confiderat)le  expence  in  procur- 
ing depofitions,  to  ihew  the  fraud  pra6^tifed  by 
the  plaintiffs,  to  procure  the  depofition  from 
Smith, 

The  counfel  for  the  defendant,  then  moved 
the  court,  to  allow  and  tax  in  the  bill  of  coft^ 
the  real  expence  v/hich  had  arifen  in  fearching 
out  this  matter : — They  urged,  that  the  law 
does  not  abfolutely  determine  what  fum  fhall 
be  allowed  for  a  depofition,  though  the  ordi- 
nary courfc  of  the  court  has  been  to  tax  45.  for 
a  depofition  taken  within  the  ftate,  and  65.  for 
one  taken  out ;  yet  that  cannot  be  confidered 
to  be  a  compenfation  for  the  extraordinary^ex* 
pence  attending  the  taking  the  depofitions  in 
this  cafe  ;  it  being  left  to  the  difcretion  of  the 
court  what  fum  ihall  be  taxed,  they  fuppofed 
the  court  would  be  governed  by  the  juftice  of 
the  cafe,  and  under  the  peculiar  circumftanccs 
of  this  cafcy  would  allow  the  defendant  to  reco- 
ver the  whole  coft  he  had  fuftained. 

Mr. 


Coun;ty  of  New-Haven,  Feb. Term*  ^35 

Mr.  ^J^m5  and  Mr.  Hillhoufe,  ^or.the^lsiin-^     ""rgT 
tiffs,  contended— That  if  the  plaintiffs  had  been     ===== 
guilty  in  the  manner  ftated,  they  were  fubjeB:     Barker, 
to  an  aftion,    in  which  the  whole  damage  fuf-        ^^.' 
tained  would  be  recovered:  That  it  cannot  in    wfifQid. 
this  way  be  taxed  in  a  bill  of  coft  ;  for  it  would 
be  imputing  a  crime,   and  infliQing  a  punifh- 
ment,  without  giving  an  opportunity  to  defend^ 
which  the  law  does  in  no  inftance  allow. 

The  Court  faid — the  defendant  might  have 
his  remedy  by  a8:ion  i  therefore,  refufed  to 
tax  the  coft  beyond  the  ordinary  rule. 

It  was  then  moved — That  an  attachment 
might  iffue,  againft  .Barker  and  Jofeph  Wilford^ 
who  had  in  their  poffellion  the  depofitions  of 
Hunt  and  Smith,  which  had  been  exhibited^ 
and  become  part  of  the  files  of  court. 

By  the  Court* The  regular  procedure 

is  a  rule  for  thofe  perfons  to  bring  in  the  files 
within  a  limited  time,  and  in  cale  of  negle6t^ 
a  procefs  to  iffue  for  contempt. 

A  rule  of  court  was  accordingly  made,  and 
an  official  copy  left  in  fervice  with  Barker  and 
Wil/ordo 


Beach    againjl  the  Aiminiftrators  of  Hall^ 
deceafed, 

TWO  days  after  a  verdidvvas  returned  for 
the  plaintiff,  the  defendants  moved  in  ar-. 
reft  of  judgement.  But, 

By  the  Court. It  is  too  late  ;  no  mo- 
tion in  arreft  is  admiffible,  unlefs  made  within 
twenty-four  hours  from  the  return  of  the  ve^« 
dia. 

Ff^  Welles 


236  County  or  Hartford,  March  Term, 

1787. 
■ — =  Welles  againfl  Fov^-ler. 

whet-ca  T7  ^^^^^  ^Yom  the  judgement  of  a  Juftlcc 

juiticeof       jLi  of  the  Peace. The  judgement  was  en- 

T^kllTcon-  ^^^^^  ^^P  in  tliefe  words  :• — ^'^'  Hartford  county, 

fefii.,.fora  <' ff.   Eaft-Windfor,  06iober  16th,   1786— Be 

Jecannut°*  "it   remembered,    that  D£??u>/ Pf'^^Z/es,   of  faid 

ttuict  *f  Eaft-Windfor,  with  //r-dz<?/  Fowler,  of  Coven- 

iormore^'^  "  try,    in  the  county  of  Tolland,    on  this  day 

coft  than  his  ''perfonally  appeared  before  me,  William  Wol^ 

own  tec,  un-    „  ^    ,       t^  r        t     t\  •  r    \         -r*  r*        r   •  i   tt 

iefsitbeup-      coUy^^Y.\(\.  juitice  ot  the  Peace  tor  laid  Hart- 
onm  ante-     <<  foj-(^  cGunty ;  -  and  the  hidi  Daniel  agreed  with 

cedent  pro-      .,   r   -  i     rr        T  ^  •       i  •         t        r 

ce'«,  all      '^^  laid  7/r^.?4  and  gave  a  judgement  in  the  fum 
v/hich  mnft  ,  <c  of  20/.  lawful' money,  due  on  two  notes  that 

appear  of  .  '' 

record.  ^^*  he  had  given  him,  dated  the  1  ith  day  of  Sep- 
"  tember,  17^6,  with  ^f6  coft;  and  entry  there- 
**  of  was  then  made  on  record,   and  execution 

M^  granted  theTame  day.** 

••The  exception  taken  to  this  judgement,  wa?, 
That  it  doth  not  appear  how  or  in  what  man- 

.  'iier  faid  judgement  was  obtained,  whether  by 
confeffion  or  default ;  and  that  it  appears  not 
to  be  within  the  jurifdidion  or  cognizance  of 

.  a  Juftice  of  the  Peace,  there  being  no  antece- 
dent procefs  to  form  it  upon ;  and  without  Rich 
procefs,  the  Juftice  could  not  render  judge- 
ment for  a  greater  fum  in  coft  than  his  own  fee. 
The  judgement  v/as  affirmed,  as  to  the  debt, 
and  reverfed,  as  to  the  coft. 

By   the  Court. The  ftatute   allowing 

confeftions  to  be  taken  for  debt,  is  expreffed 
in  thefe  words — **  That  aay  one  Aftiftant,  or 
"  fuftice  of  the  Peace,  fhall  have  full  power, 
•*  and  fhey  are  hereby  authorifed  and  empow- 
"  ered,  to  take  anxi  accept  a  confeffion  and  ac- 
"  knowledgement  of  any  debt,  from  a  debtor  to 
"  his  creditor,  either  upon  or" without  antece- 
"  dent  procefs,  as  the  parties  fhall  agree;  which 
'^  confeffion  fhall  be  made  only  by  the  perfon 

''  of 


Fowler. 


County  of  Hartford,  March  Term.'  S37 

*'  of  the  debtor  himfelf :  And  on  fuch  confef-  ~^^%T, 
*'  fion  fo  made,  the  Affiftant  or  juftice  Oiall  ===== 
^*  make  9.  record  thereof,  and  thereon  grant  Welles 
"  out  execution  in  due  form  of  law.  Provide  ^^^\^£ 
"  ed,  no  confeffion  fhail  be  made  or  taken  in 
**  manner  aforefaid,  for  more  than  the  value  of 
"  tv/enty  pounds  debt,and  the  coftof  taking  fuch 
*'  confeffion,  or  which  may  have  arifen  on  an 
*'  antecedent  fuit  for  fuch  debt,  the  fame  being 
*^  agreed  to  by  debtor  and  creditor.** — By  this 
flatute,  the  Juftice  had  authority  to  take  a  con- 
feffion, and  enter  judgement  thereon  for  a  debt^ 
not  exceeding  20/. — but  he  is  not  authorifed  to 
give  a  judgement  in  fuch  cafe  for  any  more  coil 
than  his  own  fee,  for  taking  fuch  confeffion,  un- 
lefs  it  arofe  on  an  antecedent  procefs,  which 
ought  to  appear  by  the  record.  In  this  cafcjj 
it  does  not  appear  by  the  record  of  the  Juftice, 
that  there  had  been  an  antecedent  procefs,  and 
therefore,  the  judgement  for  coft  is  not  war- 
ranted by  law  ;  and  the  debt  and  coft  being  dif- 
tind  matters,  the  judgement  is  reverfed  as  to 
the  coft  only. 

Note. — Judge  Ellsworth  gave  no  opinion 
in  this  cafe. 


Clark  agaiTi/t  Bk AY.  pieaofnom 

T.  ti\  faftum, 

HE  declaration  was— That  on  the  sgth  day  thed  fcn- 
of  April,  A.  D.  1786,  the  defendant  was  f,f;,^T.r? 
indebted  to  the  treafurer  of  this  ftate,  in  a  fum  of  thing inevi- 
more  than  1000/.  lawful  money,  for  ftate-taxes,  goerto^hi' 
in  his  hands  to  colle8:of  the  inhabitants  of  the  avoidanccof 
town  of  Southington,  which  he  was  unable  to  ^Aifo^fv^nc 
fettle  and  pay ;  for  which  the  town  v.as  finally  ^  ^eaed  m 
refponfible,  and  the  fele6l-men  immediately  lia-  ni.'y  i4ferv- 
ble  J  and  that  the  defendant,  in  order  to  indem-  n^.^J.^J^V^c- 

riify    cial  deputy. 


23^  County  of  Hartford,  March  Term* 

1787.  ^^fy  ^^^  f^"^^  harmlefs  faid  town,  from  faid  ar- 
s==^=  rear  of  taxes,  did  make  and  execute  to  the 
Clark  plaintiff  a  certain  bond  obligatory.-~i/<rrc  the 
tigainji  ^Q^^  ^^  recited  at  large,  which  appears  to  be  in 
common /ormy /or  1000/.  to  the  plaintiff,  as  trea^ 
Jurer  of  Jaid  town,  and  his  Juccejfors  in  office. — 
ThenfoUows  the  condition,  in  theje  t^rds  :— — 
**  That  whereas  I,  the  faid  Bray,  am  now  indebt- 
**  ed  on  the  ftate-treafurer*s  warrants,  for  taxes 
**  againfl  the  town  of  Southington  (of  which, 
*^  by  faid  town,  I  was  appointed  collector  for 
''  fundry  years  paft)  in  confiderable  fums,  to 
"  the  amount,  perhaps,  of  1000/.  or  more,  as 
**  may  appear  by  the  treafurer's  books. — Now, 
^y  if  faid  ^r^^  fliall  faithfully  co^lleft  the  remain- 
*^  der  due  on  faid  rate-bills,  and  pay  the  fame 
'^^  to  the  ftate-treafurer  in  a  reafonable  time,  or 
^*  in  any  other  way  fatisfy  the  ftate-treafurer, 
^'  fo  as  to  indemnify  antl  fave  the  town  harm- 
*^*  lefs  from  any  demand  in  the  premifes — then 
^'  this  obligation  to  be  void.  Sec.'' — The  de- 
claration then  alledges  a  non-performance  on 
the  part  of  the  defendant.  '^ 

Under  the  plea  of  non  eJlfaBum,  Mr.  T7'im- 
hull  2ind  Mr." Edzoards,  moved  for IcdiVe  to  in- 
troduce evidence  of  durefs. — They  relied  upon 
the  ftatute  of  this  (late,  for  regulating  pleas  and 
pleadings,  by  which  it  is  enafted— **  That' the 
"^^  general  iffue  of  not  guilty,  nil  debet,  no  wrong 
^'^  or  diflTeifuv  01^  any  other  general»plea  proper 
**  to  the  a8:ion,  whereby  the  whole  declaration 
^*  is  put  upon  proof,  according  to  the  nature  of, 
*^*  the  cafe,  maybe  made  by  the  defendant; 
"  under  which  general  plea,  the  defendant  fliall 
''*  have  liberty,  upon  trial  of  the  cafe,  and  fuch 
''  general  iffue,  to  give  his  title  in  evidence,  or 
'^^  any  other  matter  in  his  defence  or  juftifica- 
**  tion,  as  the  nature  of  the  aftion  may  be ;  ex- 
*/  cepting  only  a  difcharge  from  the  plaintiff. 


County  of  Hartford^  March  Tertv^:* 

^''  or  his  accord,  or  fome  other  fpeciai  matter, 
*^  whereby  the  defendant^  by  the  a6l  of  the  plain- 
**  tiff,  is  faved  or  acquitted  from  the  plaintiff's 
**  demand  in  the  declaration." 

Mr.  Judd  and  Mr.  Root^  oppofed'the  moti- 
tion.  But, 

By  the    Court. Under  this  plea,  the 

defendant  may  exhibit  proof  of  any  thing  which 
goes  to  the  avoidance  of  the  bond  ;  for  it  is  not 
within  the  exception  of  the  ftatute. 

It  appeared  in  evidence — That  the  treafurer 
of  the  ftate  had  iffped  an  execution  againft  the 
defendant,  for  the  arrear  of  ftate-taxes,  on  the 
bills  in  his  hands,  as  colleQor  for  the  town  of 
Southington,  direfted  to  the  Iheriff  of  Hartford 
county  only.  The  iheriff  deputed  Simeon  New^ 
el^  an  inhabitant  of  Southington^  to  levy  this  ex-- 
ecution.  Newely  by  virtue  thereof,  arreiled  Bray 
the  defendant,  and  held  him  in  cuftody,  until  he 
executed  the  bond  in  queftion. 

The  defendant's  counfei  made  two  points  in 
the  defence  :— 

i.  That  the  treafurer's  execution,  being  di« 
reeled  to  the  fheriff  only,  without  any  mention 
of  his  deputy,  could  not  legally  be  ferved  but  by 
the  ilieriff  in  perfon  ;  therefore,  the  arreft  by 
Ncvjtl  was  illegal  and  void,  and  the  bond  ob- 
tained by  unlawful  compulfion,  confequently 
not  binding. 

2.  That  if  the  fheriff  had  a  right  to  depute, 
the  deputation  in  the  prefent  cafe  was  unlaw- 
ful ;  for  that  Newel  being  an  inhabitant  of  the 
town  of  Southington.,  was  refponfible  to  the 
treafurer,  in  cafe  o^ Bray's  failure;  and  there-- 
fore  Pcood  in  the  lituation  of  a  creditor  to  Bray  : 
and  that  the  law  never  permits  creditors  to  be- 
come their  own  bailiffs. 

The  jury  found  a  verdiQ  for  the  defendant ; 
on  which  the  Court  unanimoully  delivered 
the  following  opinions :  3y 


^4lO  County  of  Hartford,  March  Term." 


"i'tStT         ^y  ^^^  common  law  of  England,  all  writs  di- 
=====     reeled  to  the  fhcriff  may  be  executed  by  his 
Clark      general  or  fpecial  deputy  :  And  there  is  no  di- 
agaifi^^     verfity  between  the  Englifh  and  our  law  in  that 
'^  ^*       refpeft ;  the  mode  of  return  only  is  different. — 
What  the  fheriff  does  by  his  deputy  is  done  by 
himfelf.     If  the  writ  be  dire6led  to  the  flieriff, 
it  may  be  ferved  by  his  general  or  fpecial  depu- 
ty,   though  they  be  not  particularly  defcribed 
in  the  dircftion ;  and  that,  whether  it  be  a  writ 
of  execution  or  mean  procefs.     The  power  of 
the  fheriff  in  either  cafe,  to  depute,  is  incident 
to  his  olhce,  and  cannot  he  reflrained,  unlefs  by 
pofitive  i\-Aiutc, —fvid.)   Bacon's  Abrid,  4  vol. 
Tit.  Sheriff. — Cowper's  Reports,  403 — 4 — 7. — 
1  Black.  Com.  116,  339. — 1  Salk.  12 — 95 — 96. 
Holt's  Reports,  221. — Hobai't,  12 — 13. — Wood's 
Injl.  74 — 77 — 78. — 2  Black.  Reports,  332. 

In  regard  to  the  fecond  point — It  was  un-* 
doubtcdly  the  duty  of  the  fheriff  to  depute  a 
fit  perfon  ;  yet  the  fame  degree  of  intercft  will 
not  difqualify  a  perfon  for  atling  miniflerially, 
as  will  for  afting  judicially.  So  remote,  and 
minute  an  interefi,  as  in  the  pre  fen  t  cafe,  did 
not  difqualify  Newel  for  this  fervice.  The  taxes 
of  every  town  are  by  law  collectable  by  one  of 
its  own  inhabitants;  and  the  treafurer's  war- 
rant tothe  fheriff  is  good  againfl  the  colle6lor 
of  his  own  town,  where  he  has  the  fame  interell 
as  Newel  had  in  this  cafe.  The  fervice  of  the 
execution,  therefore,  in  either  point  of  view, 
was  legal,  and  there  was  not  durefs  to  avoid 
the  bond. 


SUMNJEK 


County  of  Hartford,  March  Term. 


241 


S  u  M  N  E R  ^ainjl  Lyman. 

THIS  was  a  petition,  in  nature  of  a  bill  of 
review  in  equity. — The  petition  ftated— 
That  in  December,  17853  there  were  fondry 
controverfies  fubfifting  between  the  parties, 
feme  of  which  w^ere  aSioos  pending  in  court : 
That  the  parties  agreed  to  fubmit  all  their  dif^ 
putes,  of  every  kind,  to  arbitrament,  and  the 
fame  was  then  made  a  rule  of  the  fuperior  courts 
fitting  by  adjournment  in  Hartford;  in  which 
rule  of  fubmiifion  was  exprefsly  comprehended, 
one  fuit  at  law,  depending  before  the  fuperior 
court,  in  the  county  of  Hartford  ;  one  fuit,  be- 
fore the  court  of  common  pleas,  in  Hartford  ; 
one  fuit,  before  the  court  of  common  pleas,  in 
Middlefex  county  ;  and  one  fuit,  before  the  fu-« 
perior  court,  in  the  county  of  Windham;  with 
(everal  other  matters  not  io  fuit :— That  the 
arbitrators  returned  their  a^/ard,  in  favour  of 
LymaUy  to  the  fuperior  court,  fitting  at  Hart-^ 
ford,  on  the  firil  Tuefday  of  March,  1786; 
and  the  award  was  accepted  by  the  court,  and 
judgement  rendered  thereon. 

The  petition  then  ftates  all  the  matters  re» 
fered  to  the  arbitrators,  and  the  evidence  ex~ 
hibited;  and  that  one  material  faO:  was  efta- 
blifhed,  contrary  to  truth,  upon  the  aifertion 
of  faid  LymaUy  by  reafon  of  v/hich  the  petiti- 
oner moft  unjuftly  loft  upwards  of  three  hun~ 
dred  pounds  :  That  he  has  fmce  difcovered 
new  and  material  evidence,  which  he  had  not, 
and  did  not  know  of  at  the  time  of  the  former 
trial  (naming  the  witnejjts)  by  which  he  could 
fhow  faid  fad  to  be  dire6lly  contrary  to  what 
it  then  appeared;  and  that  Lyman  had  been 
guilty  of  great  knavery  in  leveral  of  the  tranf- 
a6lions  fubmitted,  which  did  not  then  appear  : 
Gg  And 


Sumner 
againji 
Lyman* 


2^2  County  of  Hartford,  March^Term. 

^"TgT^     And  that  a  fuit  is  now  pending  upon  that  bond 
=====i     given  to  abide  the  award  of  faid  arbitrators :  The 
Sumner     prayer  of  the  petition,  therefore,  was,  that  faid 
^g^^"^     bond  and  fuit  be  decreed  void,  and  that  another 
tyman.     ^^-^i  ^^  ^^-^  matters  of  controverfy  be  granted. 
Mr.  Danay  for  the  refpondent,  took  fix  ex- 
ceptions, by  w^ay  of  abatement: — 

1.  That  faid  Lyman  dwells  in  the  county  of 
Middlefex,  and  faid  Sumner  in  the  county  of 
Windham ;  and  neither  of  them  are,  or  was, 
at  the  date  of  faid  petition,  an  inhabitant 
of  the  county  of  Hartford;  and  the  title  of 
land  is  not  concerned  in  faid  petition  :  And  by 
the  ftatute  in  fuch  cafe  provided,  all  fuits  and 
anions,  where  the  title  of  land  is  not  concern- 
ed, are  to  be  brought  and  tried  in  that  county 
where  the  plaintiff  or  defendant  dwells,  if  they, 
or  either  of  them,  are  inhabitants  of  this  ftate. 

2.  That  faid  fubmiffion  before  faid  adjourn- 
ed fuperior  court,  holden  at  Hartford,  in  No- 
vember, 1785,  being  an  original  fubmiffion  of 

'  various  controverfics,  not  otherwife  pending 
before  faid  court,  and  refpeQing  which  they 
had  no  cognizance  or  authority,  except  by  vir- 
tue of  faid  fubmiffion ;  and  the  power  and  au- 
thority granted  thereby  having  expired  upon 
the  acceptance  of  faid  award  of  arbitrators,  in 
March,  1786,  no  new  trial  can  now  be  grant- 
ed by  this  court  refpeding  faid  controverfies^ 
fubmiffion,  or  award. 

3.  That  faid  petition  contains  matters  fcan- 
dalous  and  impertinent,  by  improbably  accuf- 
ing  faid  Lyman  of  knavery,  as  therein  ftatcd. 

4.  That  the  return  of  faid  award,  before 
faid  fuperior  court,  holden  in  March,  1786^ 
the  faid  Sumner  had  an  opportunity  of  except- 
ing and  remonflrating  againft  the  acceptance 
thereof,  for  any  error,  corruption,  partiality, 
or  mifbehaviour  of  faid  arbitrators. 

5.  That 


•  County  of  Hartford,  March  Term.  143 

5.  That  it  appears  by  the  petitioner's  own  ^TSyT 
(hewing,  that  antecedent  to  (aid   trial  before  =^==-:=3 
arbitrators,  he  had  knowjedge  of  faid  witneffes,  Sumner 
now  mentioned  as  new  difcovered,    and  might  ^g^^nji 
have  had  the  benefit  of  their  teftimony.  >  *  **  ' 

6.  That  faid  petition,  and  the  matters  there- 
in contained,  are  infufficient,  &c» 

Mr.  DoMa  contended-— That  upon  general 
principles,  laying  all  other  difficulties  out  of 
the  cafe,  there  was  not  fufEcient  matter  ftated 
to  warrant  a  new  trial.  The  principal  fa6ls  al- 
ledged  are — that  the  petitioner  has  fince  found 
that  he  can  now  produce  witneffes,  not  before 
produced,  v/hich  will  place  fomefaBs,  litigated 
before  the  arbitrators,  in  a  point  of  view  dif- 
ferent from  what  then  appeared ; — but  nothing 
is  ftated  to  evince,  that  if  the  petitioner  had 
paid  proper  attention  to  the  preparation  of  his 
caufe,  he  might  not  then  have  produced  all 
the  evidence  now  difcovered  ,♦  unlefs  that  was 
the  cafe,  he  cannot  be  entitled  to  the  relief 
prayed  for.  No  one  ihall  be  permitted  to  pro- 
fit by  his  own  negligence  1  nor  is  a  new  trial 
ever  to  be  granted  for  evidence  which  might 
have  been  obtained  at  a  former  trial,  or  on  ac- 
count of  evidence  difcovered  after  the  trial, 
which,  by  ufing  due  diligence,  might  have 
been  difcovered  before,' — 1  Wiljon^  93,  Coke 
vs.  Berry. — 5  Bacon's  Abrid,  225. 

It  is  made  a  principal  ground  of  complaint 
in  the  petition — that  an  important  faft  was  ef- 
tablifhed  contrary  to  truth,  upon  the  teftimony 
of  the  refpondent,  the  petitioner  not  having 
evidence  at  that  time  to  confront  it.  Eut  this 
is  not  a  ground-for  a  new  trial ;  for  the  parties 
are  fuppofed,  and  it  is  their  duty  to  come  pre- 
pared at  all  points,  and  they  ftiall  not  fay  they 
were  furprized  by  unexpeded  evidence.  It 
muft  be  of  dangerous  confequence  in  the  ex- 
G  g  2  treme 


2^4  County  of  Hartford,  March  Term. 

~«8t7     treme  to  grant  a  new  trial  upon  a  fuggeftion 
=====     that  a  party  was  not  apprized  of  an  evidence, 

Sumner     and  therefore  not  prepared  to  anfwer  it. 

againjl  ^  Atkin's  Rep,  321,  Richards  vs.  Symes. 
^  *"'  A  bill  of  review  may  be  had  in  chancery, 
upon  oath  made  of  the  difcovery  of  new  mat- 
ter or  evidence,  which  could  not  poflibly  be 
had  or  ufed  at  the  time  when  the  decree  paffed. 
3  Black,  Com.  454. — But  that  is  not  this  cafe. 
Nor  does  there  appear,  from  the  petitioner's 
own  ftating,  any  great  probability,  but  that  the 
merits  have  been  fully  and  fairly  difcufTed,  or 
that  any  material  miftake  has  taken  place  ; — 
and  it  does  appear,  that  the  point  to  which  the 
new  difcovered  evidence  is  to  apply,  was  dif- 
culTed,  and  witneffes  examined  on  both  fides  : 
The  cafe,  therefore,  cannot  be  opened,  on  a 
mere  fuppofed  probabilty,  that  on  a  more  full 
enquiry,  fa6ts  may  appear  differently  ;  for  this 
would  render  all  decifions  founded  on  fa8:  un- 
certain, and  protrad  litigation  to  an  endlcfs 
length.— 3  Black.  Com,  391,  392. — 1  Wilfon, 
22. — 2  Sb'-ange^  1142,  AfliUy  vs.  A/hley^  and 
Smith  vs.  Higgins. — 5  Bacon* s  Abrid.  247. — 
2  Wilfon,  306,  Gojlin  vs.  Wilcox, — 2  Atkin'Sy 
530,  ^'^t,  Bennetxs,  Lee, — 2  Atkins,  ijg,Stan^ 
dijli  vs.  Rodney, 

The  firft  exception  taken,  goes  to  the  jurif- 
diftion.— The  ftatute  is  explicit,  "  That  all 
**  fuits  and  a6lions,  wherein  the  title  of  land  is 
"  not  concerned,  fhall  be  brought  and  tried  in 
"  the  county  where  the  plaintiff  or  defendant 
"  dwells.*' — This  ftatute  has  always  been  con- 
ftrued  to  extend  to  fuits  in  equity,  as  well  as 
fuits  at  law,  and  the  reafon  equally  applies. 

As  to  the  next  point — This  being  an  award 
of  arbitrators,  cannot  be  revifed  by  the  court 
at  this  time.  The  petitioner  has  had  a  full 
opportunity  to  oppofe  the  acceptance  of  the 

award. 


i 


County  of  Hartford,  March  Term.  ^45 

award,  at  the  time  it  was  returned  ;  he  did  not     ^^==~== 
do  it;  he  has  therefore  waved  all  advantage     ~2=zJ^ 
that  might  have  been  taken  on   that  ground,     Sumner 
and  acquiefced  in  the  award.     The  powers  of     againft 
the  arbitrators,  which  were  derived  from  con-    Lyman* 
fent  of  parties,  are  gone,  and  the  court  cannot 
now  decree,  that  the  caufe  fliall  again  be  open- 
ed before  them  ;  for  it  would  be  creating  a  new 
tribunal  not  acknowledged  by  law  :    Nor  can 
the  court  open  this  matter  before  itfelf ;  for 
the  award  was,  upon  a  number  of  independent 
controverfies,  many  of  which  were  in  no  way 
cognizable  by  this  court,  except  by  agreement 
of  parties,  for  the  purpofe  of  a  fubmiffion  only. 
This  has  been  completely  done  and  executed^ 
and  the  authority  of  the  court  over  them  ex- 
pired.    To  open  thefe  matters  again  before  this 
court,  will  be  to  take  from  the  parties  the  right 
of  being  heard  before  thofe  courts  who  have  the 
legal  jurifdi6lion,  which  the  court  cannot  do; 
it  would  be  an  illegal  affumption  of  power. 

Arbitrators  were  firft  invented  to  fhorten  li- 
tigation, .to  bring  into  one  view,  and  to  a  final 
conclufion,  difputes  of  multifarious  complexi- 
ons and  natures ;  they  are  a  kind  of  domeftic 
tribunal,  which  the  courts  are  cautious  not  to 
meddle  with.  They  will  never  enter  into  the 
merits  of  the  matter  refered  to  arbitration,  but 
only  confider  legal  obje8:ions,  and  mifbehavi- 
our  of  the  arbitrators;  for  the  arbitrators  being 
judges  of  the  parties  own  choofing,  they  fhall 
not  be  allowed  to  objed  againft  the  award,  as 
an  unreafonable  judgement,  or  as  a  judgement 
againft  law.  3  Black.  Com.  17. — 2  Burrow^ 
701,  Lucas  vs.  Wilfon.—i  Blackjlonc's  Reports, 
364,  Montifiori  vs.  Montifiori. — 1  Atkin's  Rep. 
64,  MetcalfY^.  Ives. — 2  Atkin's,  138,  AJlel  vs. 
Montgomery. 

In 


246  CouiJ^TY  OF  Hartford,  March  Term, 

^TStT         In  this  cafe  there  was  no  legal  objeftions  to 

s====     the  award  taken   at  the  return  of  it ;  nor  is 

Somner     there  any  corruption,    or  mif behaviour  of  the 

againjl     arbitrators  now  complained  of;   it  is  a  requeft 

yman.     ^^  ^^  again  into  the  merits  of  a  difpute,  fub;. 

mitted,  heard,  and  clofed  by  the  arbitrators^ 

Laftly The   petition    contains  fcurrility  ; 

it  flagrantly  impeaches  the  character  and  con- 
du8:  of  a  very  reputable  man,  in  a  point  not 
pertinent  to  the  caufc  ;  therefore,  it  ought  to 
be  reje6led  on  that  ground;  for  courts  will  not 
permit  men  to  make  ufe  of  legal  procefs  to 
vent  their  fpleen.  3  Blackjlone' s  Commentaries^ 
442. 

The  Reporter  did  not  hear  the  very  ingeni- 
ous argument  of  Mr.  Edwards,  in  reply  ;  it  is, 
therefore,  neceifarily  omitted  in  the  report. 

The  Court  refufed  to  difmifs  the  petition 
at  that  time ;  but  refolved  that  enquiry  fhould 
be  made  into  the  facts  ftated. 


G L c 0 T T  and  Caldwell^  A dminijlrators  of 
Olcott,  againjl  Graham  and  M'Lean, 
Ad7niniJlrators  J/" Humphrey. 

niiiravi?'"'"  TJ^-RROR  from  the  court  of  common  pleas — .: 
^ic  a^good  XL  Olcott  and  Caldwell  brought  their  adion,  in 
Imding'to  capacity  of  adminiftrators,  againit  the  defen- 
iheiawsof    dants,  in  the  fame  Capacity,   on  a  note,    given 

by  their  intcjlate,  to  the  plaintiffs  intcfiate. 

The  defendants  pleaded, 

1.  Full  payment  by  the  original  promifTor, 
to  the  original  promiflee. 

2.  Pltnt  adminijiravcrunt. 
The  plaintiffs  traverfed  the  full   payment, 

and  gave  no  anfwer  to  the  other  part;— -to 

which 


this  ^ate. 


County  ob  Hartford,  March  Term.. 

which  the  defendants  demurred— -.And  the  re- 
plication of  the  plaintiffs  was,  by  the  court  of 
common  pleas,  adjudged  infufficient. 

Judgement  of  the  common  pleas  reverfed. 

By  the  Court. The  allegation  of  full 

payment,  in  the  defendants  plea  in  bar,  was  the 
only  point  that  was  fufficient  (if  true)  to  bar 
the  a6lion ;  and  that  being  traverfed  by  the 
plaintiffs,  and  the  traverfe  not  joined  by  the 
defendants,  judgement  ought  to  have  been  for 
the  plaintiffs.  An  adminiftrator,  by  the  laws 
of  this  ftate,  cannot  difcharge  himfelf  by  plead-- 
ing,  that  he  has  fully  adminiftered  ;  for  if  the 
eftate  is  infufficient  to  pay  all  the  debts,  he  muft 
reprefent  it  infolvent,  and  pay  to  each  creditor 
his  rateable  part  of  the  avails ;  linlefs  any  cre- 
ditor Ihall  be  fore-clofed,  by  negle6ling  to  ex~. 
hibit  his  claims,  on  due  notice  being  given,^^ 
agreeable  to  the  ftatutes  in  fuch  cafe  provided^ 
which  is  not  alledged  in  this  cafe. 


247- 

Okott,&c. 

againji 

Graham, 

&c. 


Merrils  ^^^2?z/2  AdAIvISo. 

ABEL  MERRILS  made  his  laft  will  and  The  ftamtc 
tejlament,  devifmg  and  bequeathing  all  his  fppeaTs^ 
eftate,  real  and  perfonal,  to  Mary  his  wife,  ex-  from  courts 
cept  a  fmall  refiduum  to  his  brothers  and  fif-  Hmks  co^' 
ters  ;  and  appointed  his  wife  fole  executrix.—  ^^^^^^"^ 
He  died,  and  probate  of  his  willw:^s  made  the  ^vithomlny 

3d  day  of  April,  17 76-- On  the  20th  day  of  femefo^!' 

September,    1786,    motion  was  made   to   the  vcns, 
court  of  probate  for  an  appeal,  aiid  the   fol- 
lowing reafons  fliown,  viz.    "  Seth  Merrilsy  of 
*'  New-Hartford,  now   appears  in   court,  and 
"  ihows— that  he  is  fon  and   heir   of  Sitfanna 

'' McrriM, 


248  County  of  Hartford,  March  Term. 

""^T*     "  Merrils,  late  of  faid  New-Hartford,   deceaf- 

=s===     "edj  which  faid  SujQf.7ma  wrs  fifter,    and  heir 

Merrils     "  of  Abel  Merrils,  formerly  of  faid  New-Hart- 

M^ms     "  ^^^^'  "^^  deceafed.     And  the  faid  Sufanna, 

"  at  the  time  of  the  death  of  faid  Abely  was  a 

^^femc  covert,  and  fo  continued  until  the  time 

*' of  her  death,   which  happened  on  the  25th 

'•  day   of   February,    1786  :     And    thereupon 

"  moves  this  court  for  liberty  to  appeal  from 

"  the  decree  of  this  court,   approving  the  iafl 

"  will  and  tejlament  of  faid  Abel ;  and  now  here 

"  offers  in  court  good  and  fufRcient  bail." 

The  court  of  probate  granted  an  appeal  to 
the  fuperior  court ;  and  the  appellee  pleaded 
in  abatement  thereof,  the  following  plea,  viz. 
And  now  William  AdamSy  the  appellee,  and  on- 
ly heir  at  law  of  Mary  Merrils,  alias  Mary  Kel- 
logg, late  deceafed,  the  late  wife  of  the  faid 
Abel  Merrils,  deceafed,  named  in  faid  laft  will^ 
comes  before  this  court,  and  pleads  and  fays — 
that  faid  appeal,  now  taken  from  the  probate 
©f  faid  willy  ought  to  abate,  and  be  difmifled. 
and  he  not  holden  to  anfwer  thereto. 

For  that  he  fays,  faid  Sufanna  was  of  full  age 
at  the  time  of  the  death  of  faid  teftator,  and 
probate  of  faid  will,  and  more  than  ten  years 
hath  fince  elapfed  ;  and  that  fhe  had  full  notice 
of  the  probate  thereof:  And  therefore  the  faid 
.  Seth  hath  no  right  by  law  to  an  appeal  from  the 
fentence  and  decree  of  faid  court  of  probate,  in 
approving  faid  will,  faid  coverture  notwithftand- 
ing.  The  faid  Sufanna,  and  all  other  the  bro- 
thers and  fifters  of  the  faid  teftator,  being  inha- 
bitants of  this  ftate  at  the  time  of  faid  fentence, 
ami  have  acquiefced  therein  for  more  than  ten 
years  Iafl  paft. 

The  plea  in  abatement  ruled  fufficient. 

By   the   whole    Court. -The  flatute 

granting  appeals  from  the  courts  of  probate, 

limits 


Adam 


County  of  Hartford,  March  Teriv^.  249 

limits  them  to  eighteen  months,  with  a  faving  ~  o~~ 
for  minors,  till  they  arrive  at  full  age,  and  for  : —  -J-L 
perfons  in  foreign  parts,  until  they  return  ;  but  Merrils 
has  no  fpecial  faying  for  feme  coverts ;  nor  do  ^gf^^A 
'they  come  fully  within  the  reafons  of  the  other 
favings.  Coverture  may  be  of  fixty  or  eighty 
years  continuance,  and  it  would  be  very  in- 
convenient that  eltates  fliould  remain  fo  long 
unfettled.  And  belides,  a  feme  covert  always 
hath  a  perfon  to  a8;  for  her,  who  is  fuppofed  to 
be  friendly  to  her  interefts,  and  capable  to  ma- 
nage them,  and  hath  an  intereft  of  his  own 
coupled  therewith.  Liberty  of  appeal,  like 
that  of  bringing  error,  is  but  an  indulgence, 
further  to  controvert  a  matter  once  adjudged ; 
and  as  it  cannot  be  extended  to  feme  coverts^ 
through  the  whole  term  of  their  coverture, 
^vithout  manifeft  inconvenience,  and  the  fta- 
tute  has  no  exprefs  provifion  therefor,  we  are 
not  to  fuppofe  it  to  have  been  within  the  intent 
of  the  legiflature  that  it  Ihould  thus  extend: 
Therefore,  the  appeal  in  this  cafe  does  not  lie. 

This  judgeriient  was  afterwards  ajffirmed  in  the 
fuprcme  court  of  errors. 


D 


Williams  agaiTifl  Whit  mo  v.  e, 

^ECLARATION  on  the  following  written 
promife,  viz.  "Hartford,  11th  of  April, 
'*  1777,  I  promife  to  pay  Eztkiel  Williams,  Efq. 
'*  or  order,  whatfoever  coft  has  arifen  on  ac- 
"  count  of  my  fon,  Gurdon  Whitmore,  being  im- 
'*  prifoned  in  Hartford  county  goal,  and  his 
**  trial  before  the  fuperi^r  court  in  March  laft, 
"  whenever  the  juft  fum  Ihall  be  afcertained 
H  h  "(Colonel 


250  County  of  Hartford,  March  Term. 

— "Tg'T'     "  (Colonel  Seymour  being  now  confined,  under 

::_Z-J-1     "  innoculation  for  the  fmall-pox,    and  the  files 

Williams    "  not  to  be  obtained)  the  faid  Williams  having 

againji     "  now  taken  bond  for  the  enlargement  of  my 

Whitniore.  <c  ^^y  ^^^^  before  which  faid  monies  and  cofts 

"  ought  to  have  -been  paid.   Witnefs  my  hand, 

**  Daniel  Whitrnore,** 
V     The  declaration  alledges,  that   the   fum  of 
•the  coft  was  legally  afcertained  to  be  36/.  35. 
,iid,  and  fpecial  notice  given  to  the  defendant 
.on  the  26th  day  of  06lober,  1784. 

Plea. — That  having  prayed  ;oyer  of  the  files 
«of  the  fuperior  court,   mentioned  in  the  plain- 
tiff's declaration,  and  the  fame  being  read,  &c. 
.(fets  forth  the  bill  of  cojls  at  largey  which  appears 
to  have  been  taxed  September y  1786.)  Therefore, 
at  the  date  of  the  plaintiff's  writ,  the  "juft  fum 
"  of  the  coft,"   mentioned  in  the  writing,  on 
.which,  &c.  was  not  afcertained ;,  and  that  the 
-defendant  had  received  no  notice  of  the  fum 
-thereof  at  that  time,  nor  until  the  month  of 
Septemb.er,  1786. 

Replication, — That  the  bill  of  coft  recited  in 

Hne  plea,  was  relaxed  in  September,  17861  and 

that  the  fame  had  been  previoufly  afcertained 

and  taxed  in   September,    1777;  and  that  the 

defendant  had  due  notice  thereof,  as  alledged 

,.  in  the  declaration. 

Rejoinder. — Traverfe  of  the  replication — 
fur-rejoinder — in  affirmance  and  acceptance  of 
the  traverfe  I — to  which  there  was  a  demurrer, 
and  joinder  in  demurrer  ; — and  judgement  for 
the  plaintiff. 

By  THE  WHOLE  Court.- — ^This  a£lion  is 
upon  a  promife  to  pay  the  coft  of  a  certain  pro- 
lecution,  when  it  fhould  be  taxed. — The  defen- 
dant pleads,  that  the  coft  was  not  taxed  before 
the  bringing  of  this  fuit. — The  plaintiff  replies, 
in  fupport  of  his  decraration,  that  it  was  taxed 

in 


County  of  Hartford,  March  Term.  251 

in  September,   1777;  and  that  the  defendant     "^yg^ 
had  notice.;  and  that  the  bill  is  fioce  loft  from     =^=== 
the  files,  or  miflaid. — The  defendant  traverfes    Wiliiams 
the  taxing  in  September,  1777  5  and  the  plain-  ^§^^^^ 
tiff  again  afhrms  over,  and  accepts  the  traverfe, 
which  Vas  enough  for  him  to  do.      It  was  not 
neceffary  that  he  Ihould  fet  forth  a  record  of 
the  taxing,  or  that,  for  his  purpofe,  there  iliould 
have  been  a  record  of  it.     The  coft  was  taxa^ 
ble  out  of  court,  and  being  taxed,  and  the  de- 
fendant noticed,   it  was  his  duty,  by  the  con^ 
tratl,  to  pay  it,  whether  it  ever  became  matter 
of  record  or  not.      If  the  plaintiff  could  not 
have  proved  the  iffue,  he  muft  have  failed..^— 
His  fur»rejoinder  was  fufficiento 


Webb  againjl  May  and  his  Wife. 

ACTION  of  book-debt,:  for  articles  deli^ 
vered  the  wife  before  marriage.  The 

jury  found  the  following  fpecial  verdid,   viz. 
**  That  faid  Martha^  while  fole,  and  before  her 
**  intermarriage  with  the  defendant,  in  the  years 
''  1773-  and  1774,   being  then  a  minor,   undcF 
*'  the   age   of  eighteen  years,   and  more  fhan 
'"  fourteen  years,  and  poffeffed  of  fufficient  ef^ 
*'  tate  in  her  own  right,  did,  with  the  confenfe 
**  and  approbation  of  Ezekiel  Williams,  Efq.  of 
"  Weathersfield,  purchafe,  take,   and  receive 
''  of  the  plaintiff,  the  feveral  goods  and  arti- 
''  cles  charged  in  the  plaintiff's  account,  to  her 
«*  own  ufe  and  benefit :  That  faid  Williams  was 
<*  duly   appointed,    by   the   court  of  probate, 
**  guardian  to  faid  Martha,  when   fhe  was  of 
"  the  age  of  nine  years  only,  hex  father  being 
^  h  .?,  *^  thexHi 


252  County  of  Hartford,  March  Term. 

~  _gT^     **  then  dead,  and  no  other  guardian  was  ever 

===^     **  ele6ied  or  appointed  to  h\d  Martha:    That 

Webb      **  faid  articles  charged  as  aforefaid,  were  all  for 

^^'V     **  neceffaries  fuitable  to  the  rank  and  condition 

^y'       "  of  the  faid  Marthay  who  then,  and  before, 

**  lived  with  her  mother^  and  not  with  faid  WiU 

**  Hams :    That  faid  articles  were  firft  charged 

*'  to  faid  Williams,  by  the  plaintiff,  without  any 

•*  exprefs  agreement  of  faid  Williams :     That 

"  faid  Williams  afterwards  difclaimed,  and  re- 

**  fufed  to  pay  the  fame ;  whereon  the  plaintiff 

"  difcharged  faid  Williams,  and  by  faid'  Willie 

'*  ams*s  order  and  direction,    charged  the  fame 

*^  to  faid  Martha.''' 

On  which  judgement  was  rendered  for  the 
plaintiff. 

By    the   whole    Court. At  common 

law,  minors  of  the  age  of  difcretion,  are  bound 
by  their  contra6ts  for  neceffaries ;  none  would 
oiherwife  truft  them,  and  they  would  be  in 
worfe  condition  than  perfons  of  full  age. 

How  far  perfons  under  the  government  of 
parents,  mafters,  or  guardians,  were,  by  the  late 
flatute,  difabled  to  make  any  contrails  or  bar- 
gains, which  Ihould  be  valid  againft  them,  it  is 
not  neceffary  in  this  cafe  to  determine  ;  for  the 
minor  here  was  not  in  that  predicament.  Th6 
guardianfhip  of  Mr.  Williams,  by  virtue  of  the 
appointment  made  when  fhe  was  nine  years  of 
age,  could  continue  only  till  fhe  arrived  at 
twelve,  and  was  of  age  to  choofe  for  herfelf. — ; 
The  furety  given  for  his  faithful  guardianfhip 
could  hold  no  longer ;  and  no  fubfequent  ac- 
quiefence,  or  implied  choice  on  the  part  of  the 
minor,  could  continue  him  her  legal  guardian, 
without  an  allowance  of  the  judge  of  Probate, 
and  new  furety  given.  Without  furety,  there 
*       '      can  be  no  guardianfhip,  conformable  to  the  fta- 

tute. 

Upon 


County  of  Hartforp,  March  Term.  253 

Upon  the  fa6ts  found,  therefore,  in  this  ver-     "^"Tg^ 
dia,  the  law  is  with  the  plaintiff.  =^J^J^ 

Webb 

This  judg  erne  fit  was.  afterwards  reverfed  in  the     agair.ji 
fiiprcriie  court  of  errors.  ^^^ "^y  • 


Corr 


i254  County  of  Windham,  March  Term. 

Co  IT  againjl  Fitch. 

Tfuku^on^    A  CTION  of  diffeifin.. P/d^— That  on 

abond,i$no  l\,  the  15th  day  of  July,  1783,  the  defen- 
tfon^of^Jje^a-  dant  was  indebted  to  the  plaintiff,  in  the  fum 
xrer.t, forthe  of  720/.  145.  lid,  which  before  that  time  had 
landlmoit-    been  fecured  to  the  plaintiff  by  two  notes  of 
gaged  in  fe-  hand,  payable  on  demand  :  That  on  faid  inth 
Uraedfbc.      day  ot  July,  1703,  the  plaintili  required  a  fur- 
ther fecurity  for  faid  debt ;  and  the  defendant, 
in  order  to  obtain  a  further  day  of  payment, 
did  make  and  execute  to  the  plaintiff,  two  deeds 
of  the  lands  defcribed  in  the  plaintiff's  decla- 
ration, on  condition,  that  if  faid  Fitchyhis  heirs, 
executors,  adminiftrators,  or  affigns,  Ihould  well 
and  truly  pay,  or  caufe  to  be  paid,   to  the  faid 
Coit,  his  heirs,  executors,  admiiniftrators,  or  af- 
figns,  faid  two  notes  of  hand,    demanding  faid 
fum  of  720/.   14s.    lid.  then  faid  deeds  to  be 
void ;  which   is   the  only   title   by  which  the 
plaintiff  challenges,  and  pretends  to  hold  the 
demanded  premifes :  That  on  the  30th  day  of 
April,   1785,   the  defendant  paid  to  the  plain- 
tiff, the  fum  of  189/.  gs,  ^d,  in  full  difcharge 
of  one  of  faid  notes,  and  the  plaintiff  received 
the  fame  in  payment  thereof,  and  which  was 
the  whole  fum  fecured  by  faid  note.    And  the 
plaintiff  inftituted  a  fuit  againft  the  defendant 
on  the  other  note,  mentioned  in  faid  deed,  be- 
fore the  court  of  common  pleas,  in  the  county 
of  New-London,  and  on  the  firft  Tuefday  of 
February,  1785,  recovered  a  judgement  for  the 
fum  due  thereon,  and  coft ;  and  the  plaintiff 
now  hath  his  execution  thereon,  ready  to  be 
collefted :     Wherefore,    the   plaintiff  having 
made    his    eleftion    of    the   perfonal   fecurity 
*  given   as   aforefaid,   faid  deeds  have  become 

void  in  law. 

There 


County  of  Windham,  March  Term.  255 

Thei;e  was  a  replication  and  demurrer  there-  ivqtT 
to  ;  but  the  queflion  made  by  the  counfel,  re-  ==4== 
lpe8:ed  the  fufficiency  of  the  plea  only.  Coit. 

Mr.  ^Chandler  and  Mr.  Dixon,  for  the  defen^  againfi 
dant,  contended — That  the  principles  of  the  *it^*'*- 
Englifh  law,  refpecling  mortgages,  were  not  ap- 
plicable to  the  prefent  cafe ;  for  in  England 
they  were  ftriftly  deai  pledges,  and  the  mort- 
gagee holds  no  other  fecurity  for  his  debt;  or 
he  enters  into  pofleffion,  and  pays  himfelf  with 
the  rents ;  but  here  there  were  obligations,  or 
perfonal  fecurity,  given  for  the  debt,  and  the 
creditor  alfo  held  real  eftate,  or  collateral  fe- 
curity for  the  fame  :  He  therefore  had  a  dou- 
ble remedy,  and  might  purfue  which  he  pleaf- 
ed  ;  when  he  had  made  his  eledion,  he  iliould 
be  bound  by  it.  In  this  cafe,  the  creditor  had 
made  his  ele6tion,  by  receiving  part  of  the  mo- 
ney, and  commencing  a  fuit  for  the  remainder! 
he  was  therefore  bound  to  purfue  that  line  on« 
ly  for  fatisfa6lion. 

Mr.  Sf  aiding,  for  the  plaintiff,  contended— 
That  the  mortgage  deed  conveyed  an  eftate, 
defeafible  only  on  condition  of  full  payment; 
and  that  the  creditor  might  purfue  all  his  re- 
medies at  once,  until  that  object  was  obtained, 
and  that  nothing  ihort  of  that  could  affe6l  the 
plaintiff's  title. 

By  the  whole  Court.- -The  plaintiff's 

deed  vefted  him  immediately  with  the  fee  of 
the  lanii,  and  was  defeafible  only  by  the  pay- 
ment of  two  certain  notes,  one  of  which  is  not 
yet  paid.  The  fuit  had  upon  it  was  a  demand, 
but  not  payment.  As  to  the  plaintiff's  having 
made  his  eledion  by  that  fuit,  it  is  true,  he  can 
have  but  one  fatisfadion  for  his  debt,  but  both 
fecurities  hold  till  he  has  that.  No  proceed- 
ings on  the  note,  fhort  of  payment,  will  exo- 
nerate the  land;  nor  will  ejeftment,  or  any 

proceedings 


Fitch, 


256  County  of  Windham,  March  Term, 

^TSt!  proceedings  on  the  land,  difcharge  the  note, 
1:=::==^  unlefs  it  be  a  fore-clofure  of  the  equity  of  re- 
-Coir.  demptioh,  which  takes  it  out  of  the  nature  of 
^v^"^  a  pledge,  and  appropriates  it  in  payment;  nor, 
as  hath  been  contended,  is  the  pendency  of  a 
procefs  on  one  ofthejecurities^  a  bar  in  the  mean 
tim'fe  to  a  procefs  on  the  other.  It  hath  been 
adjudged,  that  pending  a  procefs  in  chancery,' 
for  a  fore-clofure,  a  fuit  may  be  brought  on  the 
bond — in  the  cafe  o^  Burnellws,  Martin,  Doiig^ 
Infs's  Rep,  401.  In  which  cafe  it  was  faid,  by 
the  Judge,  to  hav(»  been  "  fettled,  over  and 
"  over  again,  that  a  perfon  in  fuch  cafe,  is  at 
"liberty  to  purfue  all  his  remedies  at  once." 
Satisfaction  for  the  debt,  is  the  obje6^;  this  it 
is  the  duty  of  the  debtor  to  make,  and  all  the 
pledges  or  fecurities  he  has  fee n  fit  to  give,  to 
enforce  a  fulfilment  of  the  duty,  hold,  and  may 
be  relied  on  and  purfued,  until  it  is  performed. 
Should  there  be  an.  attempt  to  purfue  either  of 
them  farther,  fpecific  relief  may  be  had,  by  an 
audita  querela-,  or  a  bill  in  equity :  Wherefore^ 
the  procefs  upon  the  note,  in  this  cafe,  as  it 
has  not  produced  fatisfaftion  of  the  debt,  is  no 
bar  to  the  prefent  a8;ion. 

So  judgement  was  rendered  for  the  plantifF. 

Note. — This  judgement  was  afterwards  affirm^ 
cd  in  the  fupr erne  court  of  errors. 


H  u  B  B  A  R  D  and  Others,  againft  Manning  and 
Others, 

w'bTen^'  Ti  RROR  from  the  court  of  common  pleas.— 
pleaded  in  X_j  Judgement  was  rendered  againfl  the  de- 
%X^llt  fendants,  in  the  capacity  of  adminiftrators,  ex- 
nctbe plead-  ecution  iffued,  a  nxA?/ returned,  and  difcirefa-^ 
fack^s.^  ^*^"^^  cias  brought  to  obtain  execution  de  honis  pro- 

priis  } 


County  of  Windham^   March  Term.  257 

priis;  to  which  the  defendants  pleaded — That,     ""TtStT 
by  order  and  direfclion  of  the  court  of  probate,     ====: 
who  granted  to  them  adminiftration,  they  pub-    Hubbard 
lifhed  an  advertifemcilt,   requefting  all  perfons      ^g^inji 
who  had  any  claims  of  debt  againft  faid  eftate,   ^^'^'^^^'S- 
of  which  they  were  adminiftrators,   to  exhibit 
faid  claims  to  the  defendants,  within  fix  months 
from  the  date  of  faid  advertifement :  That  the 
fame  was  kept  in  public   view  for  the  term  of 
fix  months,  and  was  well  known  to  the  plain- 
tiifs  ;    but  that  they  wholly  negle8:ed  and  fail- 
ed to  exhibit  their  faid  claim  of  debt  againft 
faid  eftate  within  the  time  limited  :  And  after- 
wards, on  the  16th  day  of  March,   1786,  both 
the  plaintiffs  and  defendants  appeared  before 
{aid  court  of  probate,  and  there,  on  full  hear- 
ing, faid  court  did  refufe  to  allow  the  plaintiffs 
faid  claim  againft  faid  eftate. 

On  demurrer  to  this  plea,  judgement  was,  by 
the  court  of  com^mon  pleas,  rendered  for  the 
defendants. 

Mr.  Spalding,  for  the  plaintiffs  in  error,  took 
this  exception  to  the  judgement — That  the  de- 
fendants had  plead  nothing  in  bar  of  the  fcire 
facias,  but  what  ought  to  harve  been  pleaded  to 
the  original  aftion:  That  the  defendants  cannot 
now  take  advantage  of  thefe  matters  againft  the 
affirmance  of  this  judgement,  as  they  do  not 
impeach  the  juftice  of  the  plaintiffs*  demand^ 
but  relate  only  to  the  manner  of  profecuting 
their  claim  ;- — and  fo  was  the  cafe  of  Minor 
vs.  Cook  adjudged  laft  term.*  This  is  alfo  con-  #  Ante. it--, 
fonant  to  the  principles  laid  down  in 'all  the 
Englifh  books  of  authority,  vid.  Croke,  Eliz. 
283,  Alien  vs.   Andrews.— 1  Siderjin,   182. — 1 

Salkeld,  2,  Weji  vs.  Sutton, By  this  oiniflion  . 

to  plead  in  abatement  at  the  proper  time,  in  the 

original  action,   the   defendants  have  put   the 

plaintiffs  to  great  expence  ;  it  v/ould  therefore 

I  i  be 


258  County  of  Windham,  March  Term- 

"^TgT     be  unreafonable  to  allow  the  plaintrffs  demand 

=====     to  be  now  defeated  by  delatory  matter,  which 

Hubbard    is  fuppofed  to  be  waved. 

^sa^['A  Mi-.  Larrahcty   for  the  <lefendants  in  error, 

anning.  contended — That  the  matter  pleaded  in  bar  of 
the  fciTt  facias,  was  fubftantial  matter,  which 
afFc^ls  the  right  of  adion  ;  therefore,  it  might 
well  be  taken  advantage  of  at  that  ftage  of  the 
procefs  :  That  the  cafe  of  Barton  vs.  Cooke,  re- 
Jied  upon  on  the  other  fide,  did  not  apply  to 
the  prefent  cafe  ;  for  there  the  plea  to  the  fci^ 
re  facias  contained  mere  matter  of  abatement 
to  the  original  fuit,  which  the  court  adjudged 
was  attached  to  the  firft  procefs,  and  could  not 
be  taken  advantage  of  afterwards,  if  waved  at 
that  time  :  That  the  non-claim  of  the  plaintiffs 
pleaded  in  this  cafe,  is  proper  matter  in  bar  of 
their  demand,  and  calls  in  queftion  the  foun- 
dation of  the  firft  judgement ;  therefore,  might 
well  be  taken  adveintaigQ  of^  on  xhQ  fcire  facias* 
By  the  Court. — (Judge  Dyer  ahjent) — 
The  matters  pleaded  in  bar  of  iht  fcire  facias, 
if  true,  might  have  been  pleaded  to  the  origi- 
nal a8:ion  ;  and  therefore  could  not  be  legally 
admitted  in  bar  of  ih^  fcire  facias,  the  effe8:  of 
;  which  is  to  enforce  payment  from  the  defen- 

dants, out  of  their  own  goods,  of  a  judgement, 
previoufly  rendered  againft  the  goods  of  the 
deceafed  in  their  hands,  as  adminiftrators. 
The  judgement  was  reverfed* 


Fitch  againjl  Hyde  and  another, 

^j'^HE  defendants  were  executors  of  Walter 
X  Hyde  and  Samuel  Hyde,  deceafed,  who 
were  joint  executors  of  Jofeph  Fitch,  deceafed. 
This  action  was  upon  a  note,  from  the  lirft  tef 
tatGTio  the  plaintiff, — Plea — non  eJifaBnm. 

The 


County  of  Windham,   March  Term.  259 

The  eftate  01  Jofeph  FiUJ%  deceafed,  was  re-     "^TgT" 
prefented  infolvent,  and  commiffioners  appoint-     ^r^-  — il 
ed  to  examine  the  claims.     The  note  in  quef-      Fitch 
lion  was  exhibited  to  them,   as  a  debt  againft      againft 
faid  eftate  ;  and  the   fame  defence  being  then  "^^^'  ^^' 
made,  the  note  was  difallowed  by  the  commif- 
fioners, on  which  the  eftate  proved  folvent. 

The  defendants  couniel  now  moved  for  the 
admiffion  of  thofe  commUfionerSy  to  teftify  how 
the  facts  appeared  on  the  enquiry  before  them.- 
But, 

By  the  Court. — ( Ji^dge  Dyer  abfent)— 
The  opinion  of  the  commiffioners  is  iramateri-^ 
al  ta  us^  nor  is  it  important  to  us,  how  the 
matter  appeared  before  them  ;  this  court  muil 
judge  from  the  evidence  here  exhibited.  If 
any  witnefs  who  before  teftified,  is  dead,  his 
tcftimony  may  now  be  given  in^  evidence  1  or 
any  co^nfeffion  of  the  plaintiff  againft  himfelf-— 
but  no  farther. 


o 


TAe  State  againfi  Abi^er  Burrows, 
jN  an  information  of  the  State's  Attorney 


for  paffing  a  counterfeit  certificate,  for 
the  intereft  of  money  loaned  to  the  ftate;-— the 
prifoner  pleaded  not  guilty, 

Mr.  Larrabee,  counfel  for  the  prifoner,  then 
moved  the  court— That  the  prifoner  might  be 
releafed' from  his  imprifonment,  upon  procur- 
ing bail.  It  appeared,  that  he  had  been  con- 
vi&ed  of  the  fame  crime,  in  Middlefex  county, 
the  laft  circuity  and  fentenced  to  three  years  im- 
prifonment, from  which  he  had  efcaped,  before 
the  commifTion  of  the  crime  now  complained- 
of.  And, 

lis  By 


26o  County  ©f  Windham,   March  Term. 

'^ToZ^         By  the  Court. The  term  of  iniprifon- 

a — —J^     ment,   to  which  he  hath  been  fentenced,  not 

The  State  being  expired,  he  cannot  be  enlarged,  though 

againj}     he  ftiould  procure  bail. 
.  Burrows. 


(]iUrC/^AJUt> ,  l<fZn^J^^  Hamlin  againfc  Fitch. 

Acotttraftis  ^f^HIS  was  an  aPiion  upon  a  joint  and  feve- 
"heftVmce"  ^^^  obligation,  given  by  the  defendant, 

againft  iifu-  and  onc  William  Campbell,  on  the  28th  day  of 
beVorthV^  February,  1785,  for  the  payment  of  16839  ^^^•' 
repayment  lars  in  ^7ial  fettlement  certificates y  within  fix 
vIiuelhTn"  months  from  the  date. 

the  thjng  The  ilfuc  joined,  and  found  by  the  verdift 

JiX^tcad-  of  the  jury,  was,—"  That  the  obligation  was 

vanceoF  fix  "  given  for  the  loan  of  16839  dollars,  m  final 

percent.       ^*  Jetthment  certificates ;  and  that  it  was  corrupt- 

"  ly  agreed,  between  the  plaintijfy  faid  Camp- 

**  belli  and  the  defendant,  to  give  the   plaintiff 

*'  1000  dollars  in  lawful  money  for   faid  loan, 

*'  for  the  term   of  fix  months,  more  than   the 

*'  lawful  intereft  :    And  that,  in   purfuance   of 

*'  faid  agreement,  an  obligation  was,  by   faid 

"  Campbell,  given   to  the  plaintiff  therefor  ; — 

**  and  that,  therefore,  faid  contra^:  was  ufuri- 

"  ous  and  oppreffive,"  &c. 

Mr.  Halfey,  and  Mr.  Peters,  counfel  for  the 
plaintiff,  moved  in  arrell  of  judgement,  and  for 
caufe  alledged, — That  the  iffue  joined  was  im- 
material, as  the  obligation  on  which,  &c.  was 
given  for  final  fettlement  certificates,  which 
were,  at  the  time  of  the  loan,  in  a  depreciating 
condition,  and  attended  with  a  rifque  of  the  to- 
tal lofs  thereof,  within  the  term  of  fix  months, 
or  a  much  greater  depreciation  in  value,  than 
the  fum  fecured  to  the  plaintiff  by  the  note  from 

Campbell : 


County  of  Windham,   March  Term.  261 

Campbfll  i  Therdore,  the  contraa   not  being     "^^8^ 
for  money  loaned,  but  for  a  collateral   article     ===^=^ 
of  a  perifhable  nature,  and  the  whole  hazard  of    Hamliti 
lofs   being  upon  the  plaintiff,   faid  contraft  is      ""if^"/ 
not  uiurious. 

By  the  Court. — — It  appears  from  the 
verdia,  in  this  cafe,  that  for  a  loan  made  the 
28th  day  of  February,  1785,  of  16839  <ionars 
in  final  fettlement  certificates,  or  certificates  of 
balances  due  from  the  United  Stales,  it  was 
agreed  to  give,  and  there  was  in  fa8;  given,  the 
noteTiow  fued,  being  for  the  re-payment  of  the 
like  fum,  and  kind  of  certificates,  at  the  end  of 
fix  months,  with  lawful  intereft  thereon  ;  and  . 
alfo  another  note  for  300/.  lawful  money  : — - 
Which  agreement,  the  jury  find,  was  ufurious, 
within  the  ftatute; — whether  it  could  be  fo,  is 
a  queftion  of  law  now  moved  in  arreft. 

To  bring  a  contraB:  v/ithin  the  liatute,  and 
the  mifchief  it  was  made  to  prevent,  it  mull  be 
clearly  for  the  re-payment  of  a  greater  value 
than  the  amount  of  the  loan,  with  an  advance 
thereon,  at  the  rate  of  fix  per  cent,  per  annuvi. 
That  it  be  of  a  greater  quantity,  though  of  the 
fame  kind  of  article,  is  not  fufficient :  If  the 
article  be  of  a  flu6luating  value,  and  from  fuch 
change  or  diminution  of  its  value,  as  from  its 
nature,  or  the  courfe  of  trade,  it  is  fubje6l  to, — 
it  may  not,  at  the  time  of  re-payment,  be  worth 
mere,  or  fo  much.  A  loan  of  one  hundred 
bufhels  of  fait,  for  example,  in  the  year  1783^ 
when  it  was  at  twelve  fhillings,  to  repay  double 
the  quantity  at  the  end  of  one  year,  when  it 
might  have  been  worth  but  fouriliillings,  would 
not  come  within  the  ftatute,  be  the  price  what 
it  might  at  the  year's  end  :  Nor  would  it  make 
a  difference,  if  it  was  to  repay  106  bufhels  of 
fait,  and  a  fum  of  money  befides,  provided  both 
of  them  might  not  amount  to  more  than  the  va- 
lue 


262  County  of  Windham,   March  Term.' 

"^TStT     ^^^  ^^  ^^^  loan,  and  fix  ptr  cent,  intereft  there- 
: — —^     on. — With  regard  to  the  final-fcttlement  certi- 
Hamlin    ficates,  faid  to   be  loaned  in  this   cafe ;  it  is 
againji     j^attcr  of  public  notoriety  that  they  were,  at 
the  time  of  the  cohtraQ,  in  a  ftate  of  rapid  de- 
preciation, and  that  having  no  funds  to  reft  up-^ 
on,  for  principle  or  intereft,  it  was  wholly  un- 
certain how  low  they  would  fall,  and  whether, 
at  the  end  of  fix  months,  they  would,  if  confi- 
dered   as  merchandize  (as  they  muft   be,    to 
bring  them  at  all  within  the  defcription  of  the 
ftatute)  be   worth   half  fo   much  as  they  were 
when  loaned  :   In  which  cafe  the  plaintiif,  in- 
ftead  of  gaining  three  hundred  pounds,  would 
lofe  that  fum,  and  the  defendant  gain  it.     The 
lofs  by  the  depreciation  was  at  the   plaintiff's 
rifque  :  As  he  received  in  the  300/.  a  premium- 
for  the  rifque,  the   rule  of  damages  upon  thisi 
note,  would  be  the  market  value  of  the  certifi- 
cates, at  the  time  they  were  to  be  repaid. — So- 
was  the  cafe  of  Lathrop  vs.  Wejl,  determined  in 
this  county,  where  the  loan  was^  of  depreciating 
continental  bills,  and  a  fum  in  hard  money  was- 
taken  as  a  premium  for  riflcing  the  depreciation 
upon  them.     There  the  depreciation  happen- 
ing to  exceed  the  premium,  the  plaintiff  loft  the 
whole  intereft,  and  part,  of  the  principle,  as 
might  have  been  the  cafe  here.     The  contra8: 
in  this  cafe,  though  in  the  form  of  a  loan,  was 
really  in  nature  of  a  fpeculation,  and  bargain 
of  hazard:    It  depended  upon  a  contingency, 
viz.  that  of  depreciation,  whether  all,,  or  how 
much  of  the  principal,  or  value  loaned,  fhould 
be  repaid,  and  which  of  the  parties  the  fpecula- 
tion fhould  ultimately  favour;  which  takes  the 
contra6l  entirely  out  of  the  ftatute. — Vide  cafe 
of  Morrifetvs.  King, — 2  Burrow's  Rep,  891  : 
Alfo  Ma/bnvs.  Abdey, — Show,  8 — ComL  125 — 

HoU  738. Though  it  may  leave  a  queftion, 

how 


Fitch. 


County  of  Windham,   March  Term,  263 

how  far  the  premium   taken  for  the  rifque   in     ^ToT^ 
this  cafe,  was  unconfcionable,  and  could  be  re-     - — —M: 

lieved  againfl  in  equity.- Judgement  was,     Hamlm 

therefore,    arrefted.  againji 

J^udge  Dyer,    and  ^^^^  Pitkin,  diJJ'ent^ 

ing, The  iffue  joined  was  material  :  For 

the  fa8;s  pleaded,  and  found  by  the  jury,  ope- 
rate totally  to  deftroy  the  plaintiff's  fecurity, 
and  bar  a  recovery  thereon.  Unlefs  (as  is  ob- 
jeded  in  the  motion)  this  borrowing  and  loan- 
ing, though  defcribed  in  the  obligation  itfelf  to 
be  on  lawful  intereft,  is  incapable  of  drawing 
any  intereft  whatever :  For,  if  it  is  capable  of 
drawing  lawful  intereft,  it  is  capable  of  addi- 
tion, if  the  parties  pleafe.  To  fuppofe  a  con« 
tra6f  which  will  carry  the  lawful  intereft,  and 
at  the  fame  time  cannot,  by  any  poflibility,  be 
made  to  carry  more,  involves  in  it  manifeft  ab- 
furdity.  The  loan  that  will  draw  fix  per  cent, 
may  draw  ten  or  twelve,  if  fo  agreed  by  the 
parties. 

In  the  prefent  cafe,  if  judgement  is  to  be 
rendered  for  the  plaintiff,  will  the  court  allow 
only  the  principal  fum  contained  in  the  obliga- 
tion, when,  by  the  exprefs  contra8:  of  the  par- 
ties, the  fame  obligation  equally  fecures  the 
lawful  intereft  thereon  ?  Clearly,  there  can  be 
no  feverance. — The  fecond  note  of  one  thou- 
fand  dollars,  is  found  by  the  jury  to  be  only 
for  the  confideration  of  the  firft  fum  lent.  Let 
a  fuit  be  commenced  upon  it,  and  upon  the 
principles  laid  down  in  this  cafe,  a  recovery 
muft  be  had  far  the  whole  fum.  Will  not  the 
plaintiff,  then,  have  recovered  on  the  firft  fuit, 
the  principal  fum  loaned,  and  the  legal  intereft; 
and  will  he  not,  on  the  fecond  fuit,  have  reco- 
vered a  further  fum  of  three  hundred  pounds 
lawful  money  ?  The  fecond  judgement  is  either 

nothing. 


261^.-  County  OF  W'iNDHAM,   March  Term;) 

'^tS'tT  "o^^ing*  ^^  elfe  it  makes  an  addition  aboVfe  the 
=====  fix  per  cent,  recovered  by  the  firft  judgcmeiu. 
Hamlin  The  legiflature  well  knew,  that  many  arts  and 
^^/^  fubtilties  have  been  invented  and  pradifed  by 
ufurers,  to  evade  the  law.  This  occafioned  the 
legiflature  to  be  circumfpeft,  and  attentive  to 
defeat  them;  and  to  cna6:  generally,  and  not 
particularize  fpecific  modes  of  ufury,  which 
lead  to  eVafion.  The  ftatute,  therefore,  is, — 
"  That  no  perfon  or  perfons  whatfoever,  upon 
"  any  contraH  made,  fhall  take,  direftly  or  indi- 
^*  re8;ly,  for  loan  of  any  monies,  wares,  mer- 
"  chandize,  or  other  commodities  whatfoever, 
**  above  the  value  of  fix  pounds,  for  the  for- 
**  bearance  of  one  hundred  pounds  for  one 
"  year.  And  that  all  bonds,  contrafts,  mort- 
«  gages  and  aflurances  whatfoever,  made  for 
*^  the  payment  of  any  principal,  or  money  lent, 
"  or  covenanted  to  be  lent  upon,  or  for  ufury, 
"  whereupon  or  whereby  there  fliall  be  refer- 
"  ved,  or  taken,  above  the  rate  of  fix  pounds  in 
"  the  hundred,  as  aforefaid, — fhall  be  utterly 
**  void." We  might  wifli  to  fave  the  plain- 
tiff at  leafl  his  principal  in  this  cafe,  as  it  is  a 
large  fum ;  but  the  words  and  fenfe  of  the  fla- 
tute  are  too  ftrong  to  be  thus  evaded.  For,  if 
in  the  prefent  cafe,  there  is  a  fecurity  for  any 
principal, , and  that  principal  is  comprehended 
in  any  one  of  the  expreflions  in  the  slBl  referred 
to,  viz.  monieSy  wares^  merchandize^  or  any  other 
commodities,  then  it  mult  be  within  the  aQ. — If 
the  plaintiff's  rtiotion  in  arreft  prevail,  it^ill  be 
a  determination  that  final-fettlement  certifi- 
cates, are  not  a  principal  in  the  obligation  on 
which  this  a^^ion  is  brought,  and  that  they  are 
not  money,  wares,  merchandize,  or  any  other  com^ 
modity  whatfoever;  and  yet  that  they  are  a  prin- 
cipal on  which  intereft  is  fecured,  and  for  which 
the  court  muft  render  judgement  for  the  plain- 
tiff to  recover.  The 


Co u ITT Y  OF  Win d h a M;,  M a r c h  T e r ivr.-  2 6^ 

The  principal  qiieftions  which  arife  in  the  "^TgT^ 
law  authorities*,  are  upon  the  diftin61ions  be-  ==.—— 
tween  a  mere  bargain  and  a  loan  :  For  a  fimple  Hamlia 
bargain,  though  a  hard  one/  is  not  within  the  agahiji 
ftatate  againft  ufury  :  And  ufurers  have  endea^  Fuch. 
voured  to  evade  the  law,  by  difguifing  the  loan 
under  the  fpecious  ilnow  of  a  bargain,  and  pof- 
fibly  on  fome  rifque.  The  judges  have  often 
been  put  to  difficulty  to  uncover  this  difguire3 
but  whenever  it  is  difclofed,  it  proves  fatal, — 
In  the  prefent  cafe,  there  is  no  cover  as  to  the 
loan;  for  it  is  fo  exprelTed  m  the  obligation^ 
arid  to  be  on  intereft  till  paj4.  It  is  an^  effeD- 
tial  part  of  the  pleadings^  and  a  faS  found  by 
the  jury,  that  there  was  at  the  fame  time^  an 
obligation  given  ibr  a  furdier  fum  of  one  thou«. 
fand  hard  dollars,  on  no-  other  Gonfideration^ 
than  as  an  additional  intereft  to  the  fix  per  cent. 
fecured  by  the  firft,  or  principal  obligation  ; 
and  by  the  corrupt  agreement  of  the  parties. 
Thefe  faQ:s  being  fotmd  true  by  the  jury,  the 
court  have  to  determine  whether  the  cafe  is 
within  the  ftatute  againft  ufury.  It  is  faid  not 
to  be,  becaufe  the  note  for  one  thou  fand  doU 
lars,  was  in  faQ  given  to  fecure  the  depreciation 
only;   and,  therefore,  it  was  all  a  bargain,  and 

not  in  nature  of  a  loan.— We  find  no  prece- 

dents,  or  law  authorities  whatever,  which  lave 
a  contra6t  out  of  the  ftatute  againft  ufury,  mere- 
ly on  account  of  the  principal  fum  loaned  being 
liable  to  become  of  lefs  value  at  the  time  of 
payment,  than  at  the  time  of  the  loan.  Troe^. 
that  where  the  whole  principal  is  at  hazard  on 
fome  contingency,  fuch  contraB  is  not  ufuri^ 
ous  ;  but  that  is  not  the  prefent  cafe.  Gonfo- 
nant  with  thefe  principles,  were  the  whole 
courfe  of  judicial  decifions  in  this  ftate,.  during 
the  term  of  the  exiftence  of  what  was  called  Old 
Tenor.  This  was  a  paper  currency  in  a  con- 
K  k  (iant 


266  County  of  Windham,  March  Term. 

^TStT     ^^"^  ^^^^  ^^  depreciation  :  Yet  all  obligations 
*====i     and  loans,  in  that  currency,  were  adjudged  ufu- 
Hamlin    rious,  where  they  would  have  been  fo  adjudged, 
againft     jf  made  in  the  ellabiifhed  coin  of  the  country. — 
Fitch.      ^  contrary  conflruftion  of  the  law  will  entire- 
ly defeat  the  gdod  defign  thereof,  and  open  a 
door  for  every  fpecies  of  oppreflion  which  it  is 
meant  to  prevent. 


Harris 


County  of  New-London,   March  Term.  267 

V  1787. 

Harris  and  his  Wife  againjl  Thomas. 

ACTION  on  Bond  of  Recognizance. fo/fu  ^^^ 
The  cafe  was,  as  difclofed  in  fpecial  plead-  of  a  baftard 
ings^_That  the  wife  of  the  plaintiff,  while  fole,  '^^ll^'ifj^^"' 
inftituted  her  fui  t  againft  Samuel  Pojly  for  the  rendered  foe 
maintainance  of  her  baftard  child,  of  which  he  p"ym*c,ns, 
was  the  putative  father ;  and  before  a  Juftice  ^^c  ^atutc  of 
of  the  Peace,  faid  Samuel  and  the  defendant  en-  IqI\  ^ot 
tered  a  bond  of  recognizance  to  the  then  plain-  operate  in 
tiff,  in  the  fum  of  150/.  conditioned, — "That  thebaiitiii 
"  in  cafe  faid  Samuel  fhould  appear  before  the  ^J^^^r^^'^^^ ^ 
*'  court  of  common  pleas,  then  to  be  holden  at  mcnc! 
**  Norwich,  anfwer  to  faid  complaint,  and  abide 
**  final  judgement  thereon,  then  to  be  void,"  &c. 

The  caufe  came  before  the  court  of  com^ 

mon  pleas — faid  Samuel  appeared  by  his  attor- 
ney ; — and  the  caufe  was  continued  to  the  next  ^  . 
term  ;  when  he  again  appeared,  and  pleaded  to 
the  adion;  but  on  an  objeftion  to  the  court, 
that  the  plea  was  improperly  clofed  (which  be- 
ing ruled  againft  him)  he  fuffered  a  defauIt.^ — 
The  court  of  common  pleas  adjudged,  that  he, 
with  the  mother,  fliould  ftand  chargeable  with 
the  maintainance  of  faid  child, — and  rendered 
judgement  for  the  plaintiffs  to  recover  the  fum 
of  16/.  175.  6d,  being  faid  Samuel's  proportion 
from  the  birth  of  the  child  till  that  time  j  and 
that  execution  fhould  iffue  quarterly  for  a  fur- 
ther fum  of  li.  175.  6d,  the  refidue  of  his  part  of 
the  fupport. Execution  iffued  on  this  judge- 
ment, and  a  return  of  non  efi  inventus,- — And 
more  than  one  year  after,  the  prefent  a6lion  was 
commenced  againft  the  bail. 

On  demurrer,  three  points  were  made  in  the 
defence  : 

ift.  That  the  Rtcognizance  was  improperly 

taken;  for  that  it  not  only  required  thefaid  Sa^nucl 

K  k  2  to 


Harris, 

&c. 

againfi 

Thomas. 


268  County  of  New-London,   March  Term. 

to  appear  in  faid  a8:ion  ;  but  "  to  abide  the  final 
"  judgement  which  fhould  be  rendered  there- 
"  on."— That  the  Jujiice  having  no  power  to 
takefuch  a  recognizance,  it  was  void,  efpecial- 
\y  as  it  refpetled  any  thing  further  than  the  ap« 
pearance  at  court. 

2.  That  faid  Poft  having  appeared,  and  pleaid 
to  the  a6lion,  had  faved  his  bail,  and  a  default 
being  afterwards  entered,   could  not  prejudice 

.  4iim ;  for  the  prefiimption  is,    that  th-e  plaintiff 
-in  the  aftion  accepted  his  appearance,  or  that 
,  -he  was  received  into  cuftody  of  the  court. 

3.  That  the  llatute  of  this  ftate,   refpe6ling 
;  Jjail,  limits  the  bringing  of  adions  againft  bail, 

to  one  year  from  the  time  of  rendering  final 
judgement  againft  the  principal;  that  there- 
fore, this  a6lion  is  not  fuitainable. 

-Judgement  was  fgr  the  plaintiffs. 

: B  Y  T  H  E  WHOLE  C  o  u n  T  ,1 ^Thc  rccogn  1- 

zanee  rbefore-  the  Juftice,  that^the  defendant 
ihould  abide  the  order  of  the  court  of  common 
pleas,   as  well  as  for  his  appearance,   was  well 
taken  within  the  ftatute  ;    and  is  according  to 
the  courfe  of  proceedings  in  like  cafes  in  Eng- 
Jand.     And  it  appears,   that  the  recognizance 
^as -become  forfeit,  for  iht  principal* s  not  abid- 
ing the  Of  der  of  court,  and  alfo  for  non-appear- 
ance.    The  records  do  not  fhow  that  an  ap- 
.pearance  was  admitted,   or  that  the  principal 
was  delivered  up  in-  court ;  which  are  fafts,  to 
be  proved  only  by  the  record,  according  to  a 
4ate  determination,  in  the  cafe  of  Fitch  againjl 
#^^jg^  J  g^if^//,  affirmed  in  the  fupreme  court  of  errors.* 
T4iat  more  than  a  year  had  elapfed  from  the 
time  of  the  final  judgement  againft  the  princi- 
pal, before  the  bringing  this  fuit ;  this  would 
ordinarily  have  exonerated  the  bail— ^but  it  did 
not  exonerate  him  in  this  cafe.     The  judge- 
=ment  here,  was  for   quarterly  payments,  for 

four 


County  of  New^-Lonbon,  Mahch  Term.  269 

four  years  from  the  birth  of  the  child,  and  the  ^^{^oT' 

recognizance  held  for  the  performance  of  the  =^=4==^ 

whole  :    The  declaration,  therefore,  fets  forth  Harris, 

a  good  caufe  of  aPuon,    and  there  is  nothing  &c. 

difclofed  by  the  defendant  fufficient  to  bar  the  Jf'''"'^ 

^  1  nomas, 
recoveiy» 


C  O  I T  /^^(^JZTZ/?  G  E  E  R . 

ACTION  qui  tarn,  for  theft. This  cafe  Jf«  ffP^^^ 
.     I  .             '  lies  iti  an 

was  tried  m  the  court  or  common  pleas,  aaionqui 

by  jury,  on  the-^plea,  not-guilty,  and  a  verdi6l  J^^^^^^*^ 

for  the  defendant.     The  plaintiff  moved,  and 

was- admitted  an  appeal  to  this  court. 

Mr.  Huntington^  for  the  defendant,  took  ex- 
ception to  thelegaHty  of  the  appeal.  He  con- 
tended— That  the  defendant  having  been  once 
arraigned  and  acquitted  of  the  crime,  is  there- 
by dfrcharged  from  any  liability  to  anfwer 
again  for  the  fame  offence. 

By  the  whole  Court. The. appeal  is 

not  fuftainable.-^No  one  is  to  be  twice  drav/n 
in  jeopardy  for  the  fame  crime,  which  might 
be  the  cafe  if  this  appeal  is  fuftairicd.  The 
complainant  might  have  fued  only  for  4iis  da- 
mages, and  had  an  appeal  ;  but  having  eleded 
to  unite  his  demand  for  damages  with  a  crimi- 
nal profecutiaii,  on  which  one  acquittal  is  fi~ 
nal,  he  has  waved  his  right  of  appeal. 


^RlCHARDS^^^2?2/2  WaYo 

THIS  cafe  was  withdrawn  laft  tenn,  with 
notice  and  leave  of  the  court ;  but  the 
defendant's  counfel  being  out  of  court,  did  not 
then  enter  for  coft,  and  moved  for  liberty  to 
4o  it  now,  which  was  denied.     And,  Bv 


2/0  County  of  New-London,   M*arch  Term* 

'^TgT^         By  the  Court. —The  aQion  was  difcon-* 

s=zJ=J=L  tinued  lail  term,  and  is  out  of  court.     Judge- 
Richards  ment  cannot  now  be  rendered  for  the  defen- 
^^'"»/  dant  to  recover  his  coft,  there  having  been  no 
^•^'  motion  entered  for  coft  laft  term,  which  could 
^  give  the  judgement  relation  to  that  time. 


Scott  againjl  Sgott, 


PETITION  for  divorce,  on  the  ground  of 
wilful  defertion,  for  more  than  three  years. 
The  petitioner  was  not  prefent  in  court ;  but 
the  fafts  being  fubftantially  proved,  and  that 
the  defertion  had  been  of  Jong  continuance, 
upwards  of  twenty  years — the  Court  difpenfed 
with  the  petitioner's  perfonal  appearance,  and 
faid  it  had  been  before  done,  in  the  cafe  of  a 
Mrs.  ThompfoUy  in  the  county  of  Hartford, 
whofe  hufband  was  fuppofed  to  be  loft  at  fea, 
and  fhe  being  unable  to  attend  court. 


Nicole  againjl  MumFord. 
An  adtnini-  jji  RRQR  from  the  court  of  common  pleas. — 

ztrator  being      ri  i--rri-  ^      •     -n  i 

appointed  in  X-J  The  plaintiff  being  adminiftrator  on  the 
whcfe^the  eftate  of  William  Nicole^  deceafed,  brought  his 
deceafed  aftion  of  debt,  on  bond,  againft  the  defendant* 
in^thisTice  After  having  abtained  ojver  of  the  letters  of  ad- 
fueforthe     miniftratiou,   the  defendant  pleaded  in  abatc- 

lecovery  of  

any  property    *^^^^^^^  > 

belonging  j.    That  by  the    letters  of    adminiftration 

ccafed/'  fhewn  on  oyeVy  the  plaintiff  is  appointed  admi- 
niftrator on  all  and  fingular  the  goods,  chat^ 
tels,  and  credits,  o^  William  Nicoky  deceafed, 
within  the  ftate  of  New- York  j  and  in  which 
charafter  the  plaimiff  ought  to  have -challenged 

in 


County  of  New-London,   March  Term.  -271 

in  this  a6lion  ;  whereas,  by  the  writ,  the  plain-     "^Tg^ 
tiff  challenges  and  dcfcribes  himfeif  as  admi-     ===^^~ 
niftrator  on  the  goods,  chattels,  and  credits  of     Nicole 
William  Nicole,  deceafed,  not  adminiftered  by      again/? 
Ranjalear  Nicoje,    deceafed,   who,   in   his  life,  ^^^'^^''^* 
and  at  the  time  of  his  death,   was  adminiftra- 
tor.  Sec. 

2.  That  it  appears  by  the  letters  of  admini- 
ftration,  that  the  plaintiff  was  only  appointed 
adminiftrator  on  the  goods,  chattels,  and  cre- 
dits of  the  inteftate  in  the  it  ate  of  New- York, 
and  not  in  any  other  ftafe. 

3.  For  that  adminiftration  granted  in  the 
Hate  of  New- York,  doth  not  authorize  fuch 
adminiftrator  to  commence  or  profecute  any 
a£lion  for  the  recovery  of  any  goods,  chattels^ 
or  credits,  within  this  ftate. 

This  plea  was,  by  the  court  of  common  pleas^ 
adjudged  fufficient,  and  the  procefs  abated; — - 
but  being  brought  up  on  writ  of  error,  the 
judgement  of  the  court  of  common  pleas  was 
reverfed. 

By  the  whole  Court.— — It  appears  by 
the  letters  of  adminiflration,  recited  in  the  plea 
in  abatement  to  the  a6lion,  before  the  court  of 
common  pleas,  that  the  plaintiff  w^as  duly  ap- 
pointed in  the  ftate  of  New- York,  adminiftra- 
tor of  the  goods,  chattels,  and  credits  of  Willie 
am  Nicoky  deceafed,  within  the  diftricl  where 
the  inteftate  in  his  life-time  dwelt;  which  let- 
ters of  adminiftration  extend,  by  the  words  of 
them,  to  all  the  goods  and  chattels  that  the 
deceafed  poffefled  in  his  life-time,  and  at  his 
death ; — therefore,  the  two  firft  exceptions  in 
abatement,  are  without  foundation. 

As  to  the  third  exception — That  the  plain- 
tiflFcan  have  no  authority  to  a6l  as  adminiftra- 
tor in  this  ftate,  by  virtue  of  an  appointment 
in  another  ftate,  it  does  not  appear  to  be  found- 
ed 


Nicole 

again  ft 

Muaiford. 


County  of  New-London,  March  Term^. 

ed  in  reafon,  or  on  any  politive  law  of  this 
{late.  Immemorial  iif-ige  has  been,  to  ad-mit 
admiQiftrators  appointed  in  oth^r  ftates  to  pi:o- 
fecute  their  adions  here.  An  adminiftrator  b 
appointed  by  a6l  of  law,  to  colleB:  and  admi- 
niller  the  goods,  chattels,  and  credits  of  the 
deceafed  perfon,  for  the  benefit  of  the  creditors 
and  heirs,  and  a8s  in  their  rir^ht.  .  It  is  mofi; 
convenient,  that  the  whole  fhouldbe  tranfahU 
ed  by  fome  perfon  appointed  in  the  Hate  where 
the  deceafed  dwelt,  and  the  principal  part  of 
his  eftate  is ;  and  that  all  the  proceedings  fhould 
be  regiftered  in  one  office :  And  an  adminiftra- 
tor  being  duly  appointed  according  to  the  laws 
of  fuch  (late,  there  appears  no  good  reafon  why- 
he, may  not.  a6l  in  that  capacity  in  another  Hate, 
as  well  as  an  attorney,  or  agent,  appointed  by 
any  particular  perfott;,  may  be  admitted  to  aa 
for  his  conflituent^  efpecialiy  anjong  neighs 
bouring  and. confederated  dates. 

It  may,  in  fome  cafes,  be  convenient  to  apr 
point  an  adminifttator  on  the  goods  of  a  fo^ 
reigner,  who  dies  in  this  ftate,  in  order  to  coll 
ie6t  and  inventory  his  effects  found  here,  and 
for  payment  of  his  funeral  charges,  and  debts 
,Gontra8;ed  and  due  in  this  ftate:  Alfo,  that 
the  remainder  of  the  goods  or  effeds  may  be 
carefully  delivered  over,  to  be  adminiftered 
upon,  at  the  place  where  the  deceafed  belong- 
ed ;  as  was  done  in  the  cafe  of  one  CadogaUy 
who  died  in  the  diftri£t  of  Norwich,  which  was 

determined  in  this  court  laft  March  term. 

In  the  prefent  cafe„  it  does  not  appear  that  the 
deceafed.  had. any  goods  or  chattels  to  be  ad- 
miniftered in  this  ftate,  or  that  there  is  any 
fpecial  reafon- why  the  adminiftrator  Ihould 
not  be  admitted,  according  to  the  Ibrrner 
ulage  and  cuftom,   to  commence  and  profe- 

cute 


i 


County  of  New-London,   March  Term.  273 

cute  aftions  in  the  courts  of  lav/  in  this  Rate,  ""^in^T 
for  the  recovery  of  debts  due  to  the  eftate  of  =-  -^ 
the  deceafed.  Nicole 

So  the  judgement  of  the  common  pleas  was     againfi 
reverfed.  Mumford. 


M'CuRDY  againjl  Mather^ 

THIS  was  a  petition  in  chancery. — -After  ^^itf'^'^ 

a  hearins[,  and  the, court  had  formed  their  "^^"^^^^  to 

opinion,   and  directed  the  clerk  to  minute  it,  JJ'i^s  aai^ 

that  a  hill  in  form  miffht  be  drawn  :  but  before  ^^^^^.  vcdia 


thd: 


t  a  hill  inform  might  be  drawn  ;  but  before  -^ff^er  ve.dia 
hill  inform  had  paffed,  the  petitioner  moved  \s  rcfu/nedj 
for  leave  to  withdraw,  which  was  denied.  noEafiera 

^  r^  T  r   •  1  1        recuinof  iir-« 

iiY  THE  Court.-- m  a   iuit  at   law,  the  bi 


)itrators  or 


plaintiiTis  not  at  libertv  to  withdraw  his  a61ion  auditors, 

^P  .>.  norafierthe 

after  verdict  or  the  jury  is  returned,   though  court  have 
before  it  is  accepted  by  th«  court;    nor  upon  fS^^c'^'^^F 
return  of  arbitrators,  or  auditors;  for  if  that  adecveein 
were  admitted,  it  would  always  be  in  the  pow-  though^^no 
er  of  the  plaintiff  to  avoid  a  judgement  againfl  MUm  forz^ 
himfelf,  when  he  had  difcovered  how  it  would  "^^  P*"^^^^? 
be  rendered.     Thofe  reafons  are  equally  ap- 
plicable to  the  prefent  cafe.     The  court  having 
expreffed  the  fubftance  of  the  decree,    though 
it  be  not  reduced  to  form,  fhall  be  concluiive; 
and  if  either   party  is    diffatisfied,    and  hath 
ground  for  relief,  he  is  to  feek  it  by  bill  of  re~ 
view. 


Wick. HAM  againfl  Waterman.  Cnmotioft 

in  arreft,  t?7e 

/%  CTION  of  diffeifin. — General  ifTue  plead-  courccannoe 

Jr\.  ed,  and  verdiQ:  for  the  plaintiff. The  Jhe^ev''d'ncc 

defendant  then  moved  in  arreft  of  judgement,  «j^^^hich 
and  affigned  for  caufe — That  the  jury  founded  found  7  gc- 
L  1  their  "^^'f^" 


74 


County  of  New-Londo-n,   March  Term. 


Wickham 

againji 
Waterman 


1787T     ^^^^"^  verdiO;  on  a  deed  to  the  plaintiff,    figned 

= by  one  Wright  and  You7ig,   which  was  neither 

acknowledged  nor  recorded,  as  the  lawdire6ls; 
therefore,  was  not  legal  evidence. 

By  the  whole  Court. On  motion  in 

arreti,  the  court  cannot  enquire  into  the  evi- 
dence on  which  the  jury  found  a  general  ver- 
di8:.  The  declaration  fet  forth — That  from 
the  year  1774,  to  the  year  1785,  the  plaintiff 
was  rightfully  and  legally  poffeiled  of  the  land 
demanded,  by  virtue  of  a  legal  allignment  from 
Wright  and  Youngs  to  whom  it  was  conveyed 
by  one  John  Loudon :  That  the  defendant, 
without  law  or  right,  thereinto  entered,  and 
thereof  difpoffeffed  the  plaintiff:  That  the  land 
in  queftion  was  afligned  to  the  plaintiff,  to  be 
difpofed  of,  for  the  benefit  of  all  the  creditors 
of  Wright  and   Young ;  and   that  the  plaintiff 

hath  good  right  to  recover  the  fame.  Sec, 

The  plea  is  proper  to  the  a8:ion,  and  puts  the 
whole  declaration  on  proof,  which  being  found 
by  the  verdicl,  in  favour  of  the  plaintiff,  every 
thing  neceffary  to  fupport  the  plaintiff's  right 
of  recovery,  as  allcdged  in  the  declaration, 
muff  be  taken  to  have  been  proved  to  the  fa- 
tisfa8:ion  of  the  jury  ; — therefore,  the  plaintiff 
ought  to  have  judgement. 


A  writ  to 
replevy 
goods  tnken 
jb>'  attach- 
nienr,  is  not 
anadveif^ry 
Tuic,  hue  a 

precepr,  and 
ougli  CO  be 
direfted  to 
the  officer 
vrho  ie;  ved 
the  attacli- 


A 


D  E  K  -I  s  o  N  againJl  R  a  y  m  o  n  d  . 

CTION  on  the  cafe,  for  a  non-feafance  in 

the  office  of  conilable. Declaration — 

That  the  defendant  being  conftable  of  the  town 
of  N^w-London,  did  attach,  at  the  fuit  of  the 
plaintiff,  againft  David  Hillhoufe,  615  pounds  of 
Carolina  pink-root :  That  the  plaintiff  recover- 
ed judgement  in  faid  fuit,  for  about  45/,  debt, 
and  for  2/.   14J.  7<i.  coft,  and  had  execution 

thereon. 


County  of  New-London,  MAitcH  Term.  275 

thereon,  which  was  regularly  delivered  to  the     "^Tg^ 
defendant  to  execute  :     That  the  defendant  fo     =^J=== 
negligently  kept  faid  pinker oot^  that  it  went  out     Denifon 
of  his  pofleffion,  and  was  loft  ;  and  that  he  re-      againj} 
turned  faid  execution,  with  his  indorfement  of  ^^v^^'^'^'^' 
non  eji   inventus :    That  Hillhoufey  the  debtor, 
having  abfconded  to  parts  unknown,  the  plain- 
tiff was,    by  means  of  the  defendant's  negle^l, 
defeated  of  receiving  any  benefit  from  his  faid 
debt  and  judgement. 

P/e^,— That  after  the pink-.root  was  attached, 
as  fet  forth  in  the  declaration,  the  fame  was  re- 
plevied, and  taken  from  the  defendant,  by  Eli- 
jah Binghaniy  a  legal  deputy-ilieriff,  by  virtue 
of  a  writ  of  replevin  to  him  direded,  in  favour 
of  faid  Hillhou/e,  againft  the  defendant,  fum- 
moning  the  defendant  to  anfwer  for  a  trefpafs, 
in  wrongfully  taking  Md  pink-rooty  Sec, — Re- 
citing the  writ  of  replevin  at  large. 

To  this  there  was  a  demurrer^  and  joinder 
in  demurrer. 

The  writ  of  replevin,  recited  in  the  plea,  be- 
ing immediately  againft  Raymondy  the  confta-.. 
ble,  without  reference  to  the  plaintiff,  at  whofe 
fuit  the  goods  were  taken;  and  the  bond  on 
the  replevin  being  taken  to  anfwer  the  damage 
which  faid  Raymond  fhould  fuftain,  the  only 
queftion  was,  whether  fuch  a  mode  of  replevin 
could  affe8:  the  plaintiff  in  this  a6tion.       And, 

By  the    whole   Court. The  writ  of 

replevin,  recited  in  the  defendant's  plea,  has 
no  relation  to  the  plaintiff's  fait  againft  HilL 
houfe,  on  which  the  pmk-^rcot  was  attached  ; 
nor  was  the  plaintiff  a  party  to  the  bond  taken 
on  faid  replevin,  nor  can  he  take  any  benefit 
thereof  for  obtaining  fatisfadion  ofthe  judge- 
ment which  he  recovered  in  faid  fuit; — there- 
fore, he  ought  not  to  be  afleded  thereby. 

A 
LI2 


276  County  OF  New-London,  March  Terai. 

^^"t!         ^  ^^^^^  ^^  replevy  goods  taken  by  attach- 
5====;     ment,  is  not  an  adverfary  luit,  but  a  mandato- 
Denifon    ly  precept,   which  ought  to  be  direded  to  the 
agaztt^     officer  who  ferved  the  attachment,   requiring 
aymon  .   j^-^^  ^^  re-deliver  the  goods  to  the  defendant 
in  the  original  aQ:ion  ;    to  give  notice  thereof 
to  the  plaintiff  at  whofe  fait  they  were  attached, 
and  to  return  the  writ  of  replevin  to  the  court 
to  which  the  attaclinient  was  made  returnable. 
On  granting  fuch  writ  of  replevin,  the  Jullice 
ought  to  take  bond,   with  fufhcient  furety,    to 
the  plaintiff  at  whofe  fuit  the  goods  were  at- 
tached, in  a  fum  fufficient  to  fatisfy  the  judge- 
ment which  the  plaintiff  may  recover  on  faid 
fuit;  for,    by  the  replevin,  the  pledge,  which 
the  plaintiff  holds  for  the  fecurity  of  his  debt, 
is  changed. 

The  writ  of  replevin,  recited  in  the  defen- 
dant's plea,  is  not  grounded  on  any  attachment, 
but  contains  an  aBion  of  trefpafs  againil  the 
prefent  defendant,  for  a  wrongful  taking  of  the 
goods  ordered  to  be  replevied,  and  the  bond 
was  taken  to  him  ;  therefore,  he  alone  can  take 
the  benefit  of  it.  This  mode  of  replevin  is  ir- 
regular, and  not  warranted  by  law. Judge- 
ment was,  therefore,  foj:  the  plaintiff. 


Swan  againji  But  LEW, 

one  of  the       A    CTION  of  book-debt.— A"// Jf'^^^rplead- 
fSaid"  JlSl  ed.— And  verdid  for  the  plaintiff, 
vhen  the  ]y|i-.  Parfous  and  Mr.  Brainardy  'moved  in 

commmed  arrcft  of  judgement,  becaufe  one  of  the  exhi- 
tothejvirf,  1^-^  ij^  |.]^£  caufe  (which  contained  material 
cnt  matter  evidence)  after  being  read  on  trial,  was  miilaid, 
in  a  reft,  if  ^j  could  uot  bc  found  whcn  the  caufe  was 
acthetirnc  committed  to  the  jury  ; — therefore,  was  not  be- 
h^y^tht  fore  them  while  the  caufe  was  under  confide- 
caufeftayed.  ration.  By 


County  of  New-Londont,  March  Term.  277 

By   the  whole  Court. The  exhibit,     "^TgT^ 

refered  to  in  the  motion,  appears  to  have  been     ===L= 
miflaid  by  mere  accident,  at  the  time  the  caufe       Swan 
was  committed  to  the  jury.     The  contents  of  it     c'gr^-^j'fi 
were  then  ftated  to  the  jury  by  the  defendant,      ^^^^^^• 
and  agreed  by  the  plains  iff;  and  neither  party 
moved  to  ftay  the  caufe  for  want  of  it  : — The 
motion,  therefore,  is  not  fulEcicnt  to  fet  afide 
the  verdi6l. 


HaLSEY  ^^<2f?2/'^-  MOTT. 

ACTION  of  book-debt. — The  general  if-  Cnmorma 
fue  pleaded— And  verdi6i  for  the  plain-  "^oTr'tlv,^ 

tiff.  notgo  into  ■ 

Mr.  Huntington  and  Mr.  Babcocky  moved  in  don'^Jf  the' 
arreft  of  judgement,  ailed  gin  g  for  caufe — That  fv^ieneeac 

...  Lir^c    on 

the  principal  article  in  the  plaintiff's  account,  ^rh?chthe 
and  that  which  turned  the  jury  to  find  a  verdict  j^f^'^j'^j^* 
againfl;  the  defendant,  was  a  charge  of  50/.  for 
2./alt~worky  confiding  of  lands,  buildings,  and 
utenfils ;  which  charge  againft  the  defendant 
could  not  legally  be  admitted  as  an  article  of 
book-debt :  And  that  the  fame  was  founded  on 
a  pretended  contra6t,  faid  to  be  made  in  the 
year  1778,  for  the  fale  of  lands  and  real  tene- 
ments;— therefore,  void,  by  the  ftatute  of  this 
ilate,  for  the  prevention  o^  frauds  and  perjuries  ; 
and  was  no  foundation  in  law  whereon'  to  war- 
rant a  judgement. 

By  the  whole  Court. — — We  are  not, 
after  verdid,  to  go  into  the  evidence  at  large. 
From  the  plaintiff*s  account  on  hie,  there  ap- 
pears a  balance  in  his  favour,  larger  than  the 
jury  have  found,  exclufive  of  the  article  men- 
tioned 


278  Goi/NTY  OF  NEW-La^BON>  March  Term. 

~Z~^  tioned  in  the  motion  ;  and  with  regard  to  that 

t=====  charge,  thoiagh  it  would  be  inadmiffible  as  for 

Halfey  the^^,  or  real  eftate,  yet  it  might  be  good  for 

asaifij^  the  works,  or  for  the  afe  of  the  works. 

'  Mou.  * 


Williams  againjl  Lesds.- 

dcbti^'hc     T^HIS  was  an  aaion  of  book-debt,  which 
account  JL     came  up  by  appeal  from  the  court  of 

shewn  on  i 

^cr,  be  lefs  commou  plcas. 

ihan  20L  ai-       Mr.  Wait  and  Mr.  Coit.now  pleaded  in  abate- 
though  ttie  f.    ,  ,  ',         I  .       - 
demand  m     mcnt  ot  the  appeal  : — That  the  matter  in  de- 

thc  oecisra-  niand  before  the  court  of  common  pleas  was  lefs 
more,  r  o      than  2oL — for  that  the  plaintifF*s  book  produced 
appeal  Uts*  ^^  gy^.^  ^^^^  q^  trial,  confifted  of  one  article  on- 
ly, of  the  amount  of  9/. — and  that  no  account 
w^as  exhibited  by  the  defendant  on  trial,  both 
parties  being  prefent. 

By  the  Court. No  appeal  lies  in  this 

cafe. — The  ftatute  does  not  admit  an  appeal 
from  the  judgement  of  the  court  of  common 
pleas,  unlefs  the  value  of  the  debt,  damage,  or 
matter  in  difpute,   exceed  the  value  of  20/. — 

Vide  Thomfon  vs.  WaleSy  ante  35. This  is  an 

action  of  debt  by  book,  and  although  the  decla- 
ration alledges — That  the  defendant  owes  thir- 
ty pounds,  by  book,  to  the  plaintiff,  yet  it  ap- 
pears by  the  pleadings,  that  the  book  produced 
in  court  on  oyer^  in  evidence  of  the  plaintiff's 
demand,  contained  only  one  article,  charged 
at  nine  pounds ;  which  is  the  proper  evidence 
of  the  value  of  the  debt  in  difpute,  and  fhows 
that  it  does  not  amount  to  the  value  that  en- 
titles to  an  appeal.  The  ftatute  ought  not  to  be 
eluded  by  any  thing  alledged  in  the  declara- 
tion. J^i^^f 


County  of  Ne^v-Londom,   M/v^ch  Term, 


^79 


Judge  BYT.v.,diJfenting.' If  it  be  alledged        1787. 


in  a  declaration,  that  the  defendant  owes  niore 
than  20/.  and  more  be  demanded,  and  the  ge- 
neral ifTue  pleaded,  the  fum  demanded  then 
becomes  the  matter  in  difpute  ; — and  though 
the  plaintiff  be  not  able  to  make  out  more  than 
5/.  on  trial,  or  produces  a  book  for  no  more 
than  10/.  yet  the  challenge  being  for  more  than 
20/.  the  appeal  lies.  The  jurifdi6lion  of  the 
court  ought  to  appear  from  the  declaration, 
and  not  to  reft  on  fuch  uncertain  footing.  In 
the  a6lion  of  book-debt,  the  defendant  has  right 
to  bring  in  his  demand  againft  the  plaintiff,  to 
what  amount  he  pleafes.  This  caufe  fet  out 
with  a  decj-ared  difpute  of  more  than  twenty- 
pounds,  and  on  trial,  the  plaintiff  fbows  lefs; 
yet  the  court  cannot  know  but  that  the  difpute 
may,  notwithftanding,  terminate  in  a  much  lar- 
ger fum,  by  the  demand  of  the  defendant  :— 
Therefore,  the  jurifdidion,  or  right  of  appeal, 
muft  depend  on  the  declaration  and  demand^ 
and  not  on  the  trial. 


"Williams 
againji 
Leeds. 


WooDBRiDGE  agaiujl  Raymond, 

ACTION  of  diffeifin.— Verdia  for  the  de- 
fendant. 
Mr.  R.  Grifwold  and  Mr.  Spalding,  for  the 
plaintiff,  moved  in  arreft  of  judgement,  and 
principally  for  this  caufe :— That  one  of  the 
jurors  who  tried  the  cafe  is  brother-in-law  to 
the  perfon  who  gave  bond  in  faid  aHion  for 
the  defendant,  and  v/as  thereby  liable  to  pay 
the  coft  of  fuit,  had  the  plaintiff  recovered,  the 
defendant  being  a  bankrupt,  and  unable  to  pay 
^^y  part.  Judge- 


The  Tame 
degree  of 
relationship 
between  a 
juror  and  the 
party  inte- 
refted  in  the 
(Hit,as  wGiild 
by  ftatute, 
exchide  a 
Judge  fro  at 
ietting  in  a^ 
caufe,  isfufw 
ficienc  caufr 
cf  arreft. 


2  8o 

Wood- 

bridgs 

againj} 

Raymond. 


County  of  New-London,   March  Term. 

Judgement  arrefiied. 

By  the  Court. —The  fir  ft   exception  in 

the  motion,  that  one  of  the  jurors  was  hrothtr^ 
in-law  to  the  perfon  who  was  bound  for  the  de- 
fendant's profecuting  the  appeal  in  this  adion, 
is  the  only  reafon  for  arrefting  judgement  in 
this  cafe.  It  appears  on  examination  of  the 
juror,  that  he  icnew  his  brother  was  furety  for 
the  defendant  before  the  jury  gave  their  ver- 
di6:;  and  a  judgement  for  the  defendant  would 
exonerate  the  furety  from  his  bond.  The  cafe 
comes  within  the  reafon  of  the  ftatute  which 
excludes  a  Judge  from  giving  his  opinion  in 
any  cafe,  wherein  he  (lands  in  fo  near  a  rela- 
tion to  either  party  as  the  juror  does  to  the 
furety. 

Judge  Dyer,  dijj'enting, 1  think  the  re- 
lation between  nht  juror  and  the  furety  would 
not  have  been  a  principal  challenge — if  fo,  it 
ought  not  to  be  taken  advantage  of,  to  fet  afide 
the  verdiQ. 


^  bond  for 
xuonev. 
Vouched  by 
tvo  -wicncf- 
Jcs,  count- 
ing in  the 
eondlsion 
tipon  a  cer- 
tain mo  t- 
gagedeed 
,of  land, 
given  as 
collateral 
Jecuricytor 
the  fame 
debt,  is  nOC 
appealable* 


Waddell  againfl  Shaw,  Executor  ofSnwVy 
■Jeceafed- 

ACTION  of  debt  on  bond,  for  2000/.  given 
by  the  deceafed,  Jofeph  PhelpSy  and  Afahel 
Strongy\^\i\i  this  condition  : — "  That  whereas, 
"  in  confideration  of  looo/.  current  money  of 
"  the  province  of  New- York,  the  above  bounden 
^'  Jofeph  Phelps  hath,  by  deed  of  mortgage,  of 
**  even  date  herewith,  conveyed  to  the  abovefaid 
"  Waddelly  one  certain  tra8;  of  land,  lying  in  He^ 
"  bro7iy  containing  about  twelve  liundred  acres, 
"  asinfaiddeedisdefcribed. — Now,  if  the  above 

"  bounden 


Shaw. 


County  of  New-London,  March  Term.  281 

"  bounden  Jojeph  PhelpSy  Afahel  Strongs  or  Na-     "ygT 
**  thaniel  ShaWy   or  either  of  them,  their  heirs,     =l=:=^ 
*.^  &c.   fhall  pay  to  faid  Waddell,   his  heirs,  &c.     Waddell 
'^  the  full  fum  of  1000/.    current  money  of  the      agai^?ji 
*f  province  of  New-York,   with  the  lawful  in- 
**  tereft,  at  or  before,  &c.  then  to  be  void,  &c." 
Which  bond  was  vouched  by  two  witneffes. — 
judgement  was  rendered  for  the  plaintiff,  by 
the  court  of  common  pleas,  and  the  caufe  came 
up  by  appeal. 

Mr.  Chandler  and  Mr.  Coity  took  exception 
to  the  legality  of  the  appeal,  on  this  ground — 
That  the  bond  on  which  the  a61:ion  was  brought, 
was  given  for  the  payment  of  money  only,  and 
well  vouched  by  two  witneffes  ; — therefore,  no 
appeal  is  allowed  by  the  ftatute. 

Mr.  VVaii  and  Mr.  Parfons,  for  the  defen- 
dant, contended — That  from  the  condition, 
there  appeared  to  be  a  mortgage  deed  of  even 
date  with  the  bond,  given  by  one  of  the  obli- 
gors, as  a  collateral  fecurity  for  the  fame  debt ; 
and  that  the  deed  and  bond  have  mutual  rela- 
tion to  each  other ;  For  on  payment  of  the  fum 
of  the  bond,  or  condition  of  the  deed,  the  title 
reverts  in  the  mortgagor; — therefore,  the  title 
of  lands  are  materially  conneded  with  the  de- 
termination of  this  adion ;  and  confequently 
the  bond  is  not  for  money  only,  within  the  true 
intent  and  meaning  of  the  law. 

By  the  Court. The   appeal  doth  not 

lie. — The  bond  is  for  the  payment  of  money 
only,  notwithftanding  what  is  faid  in  the  con- 
dition refpeding  a  deed  of  mortgage,  given~as 
collateral  fecurity  for  the  fame  debt ;  for  the 
payment  of  1000/.  New- York  currency,  is  the 
only  thing  in  the  condition  to  be  performed, 
in  difcharge  of  the  obligation. 

Judge  Dyer,  dijjentmg. In  the  condi- 
tion of  the  bond,  there  is  a  reference  to  a  mort- 
M  m  gage 


^82  County  of  New-London,  March  Term. 

'^TStT     S^S^  ^^^^  ^^^  ]^Yge  traB  of  land,    depending 
a===     on  the  performance,    or  non-performance,  of 
Waddell    faid  condition.     If  the  condition  is  not  per- 
^iifi"-^     formed,  the   land  becomes  forfeit  to  the  obli- 
gee, and  is  legally  vefted  in  him,  and  if  the 
obligor  avails  himfelf  of  it,    will  extinguifh  the 
bond ;  and  the  obligor,    in  that  cafe,   will  not 
be  obliged  or  enforced  to  pay  any  part  thereof, 
but  the  land  will  be  efteemed  a  fatisfadion  ;— 
therefore,  the  bond  is  not  for  money  only. 


Shaw. 


The  State  againjl  Phelps. 

ON  a  criminal  profecution,  it  was  moved-— 
That  the  State's  Attorney  might  teflify 
what  the  prifoner  had  difclofed  to  him,  upon 
an  application  to  be  admitted  a  witnefs  for  the 
(late  ;  which  the  Court  refufed,  and  faid — Dif- 
clofures,  under  fuch  circumftances,  to  the  At^ 
iorneyy  ought  to  be  confidered  as  confidential, 
and  it  would  tend  to  defeat  the  benefits  the 
public  may  derive  from  them,  fiiould  they  be 
made  ufe  of  to  the  prejudice  of  thofe  from 
whom  they  come. 


'Noyce  again/l  Huntington. 

ON  petition  for  a  new  trial,  on  the  ground 
of  new  difcovered  evidence. — Becket,  a 
witnefs  offered  by  the  petitioner,  though  named 
in  the  petition,  was^  refufed  to  be  fworn  ^  be- 
caufe,  the  party,  by  ufing  due  diligence,  might 

have 


County  of  New-London,   March  Term*  283 

have  known  of,  and  had  his  evidence  at   the     "^^vg^ 
former  trial.  =::=~=:a3 

The  petitioner  then  moved— That  another      Noyce 
witnefs  might  be  fworn,  who  was  not  named  in      egainfi 
the  petition;  but   he  was  refufed,   becaufe  he    ^'"q"]"^' 
was  not  named;  though  it  was  faid  by  fome  of 
the  Court,  there  wx)uld  be  more  reafon  for  ad- 
mitting him,   after  witneffes  had  teflified  who 
were  named  in  the  petition,   but  in  this  cafe 
none  had  fworn.     No  after  witneffes  were  of- 
fered, and  the  petition  was  withdrawn. 


VJd.Kichok 


JoHNsON  agaiiijl  Foot  and  Others. 

THE  plaintiff  offered  the  depofition  of  SyU 
vejter  Gilbert^  Efq.  who  lived  within  twen-  lycr,  anc<; 
ty  miles  of  the  adverfe  party,  but  when  fworn,  ^^^* 
was  at  Tolland  attending  court,  which  was  more 
than  twenty  miles  diilant  from  the  adverfe  par- 
ty, and  who  was  not  prefent  or  notified.  The 
admifTion  was  objeded  to,  on  the  ground  that 
the  plaintiff  might  have  taken  the  depofition 
when  the  deponent  was  at  home ;  and  that  it 
was  unfair,  and  evading  the  flatute,  to  improve 
an  opportunity  to  take  it  when  he  was  from 
home,  at  fuch  a  diftance  as  to  defeat  the  ad- 
verfe party  of  the  benefit  of  notice  and  crofs- 
examination  :  Bui  there  not  appearing  any  de- 
fign  on  the  part  of  the  plaintiff,  in  omiting  to 
take  the  depofition  before  the  deponent  was 
from  hpme,  and  he  mull  afterwards  take  it 
when  he  did,  or  be  deprived  of  it; — it  was 
therefore  admitted  by  the  court. 


M  m  2  SUPKEM£ 


284  Supreme  Court  of  Errors,  May  Term. 

Case  againjl  Case. 

ficafi'/  JOSEPH  CASE  made  his  laft  will,  devifing 

ro'iilnd^  "^'^  J  fundry  trads  of  land,  and  bequeathing  fun- 
eharoeabie  dry  pecuniary  legacies,  chargeable  upon  his 
P^ymtifc(f  perfonal  eflate;  and  if  that  fliould  prove  infuf- 
pecuniary  ficicnt,  then  upon  certain  referved  lands. 
Ain^'.^sp-  The  court  of  probate,  which  took  cognizance 
peal  from  of  the  will,  finding  there  was  not  perfonal  ef- 
Aip-'rior' '^^^  t^^G  af^d  referved  lands,  fufhcient  tadifcharge 
court  is  to  fix  the  debts  and  pecuniary  legacies,  ordered  part 
pici'of^iaM,  of  the  devifed  eftate  to  be  fold  for  that  pur- 
auho  ■f'^d  Pof^*  -^^  appeal  being  taken  to  the  fuperior 
to  proceed  court,  the  dccrce  of  i\\Q  probate  was  fet  afide  ; 
inchefetrJe-  ^nd  the  Court  afTeffed  a  fum  upon  each  devifee 

Jncnt  of  the  ,    ,  .  ,  ,  ^         ,  o     ,      . 

ciiatc.  and  legatee^  proportioned  to  the  value  01  their 

feveral  fhares,  fiifhcient  to  difcharge  the  pecu- 
niary legacies,  and  refidue  of  the  debts,  not 
paid  by  the  fale  of  the  referved  lands  and  per- 
fonal eflate  ;  and  ordered  execution  feverally 
to  iffue  againft  each,  in  favour  of  the  execu- 
tors, for  the  fums  fo  affeffed. 

Judgement  of  the  fuperior  court  reverfed. 

By    the   Court. Where   the  perfonal 

tflate  is  only  fufRcient  for  payment  of  debts 
and  charges,  a  pecuniary  legacy  is  loft.  If 
there  is  a  rejidroiim,  but  not  fufiicient  for  the 
payment  of  fuch  legacies  in  full,  they  muft  abate 
in  proportion,  unlefs  fpecial  provifion  be  made 
by  the  teftator.  "  But  the  legacies,  by  the  laft 
will  and  tejlament  of  the  deceafed,  in  the  pre- 
fent  cafe,  are  fpecially  charged  upon  the  per- 
fonal eftate  ;  and  if  that  fhould  prove  infufli- 
cient,  upon  certain  lands  devifed  to  be  fold, 
and  no  further  ; — therefore,  provifion  made  to 
pay  thofe  legacies  out  of  lands  fpecifically  de- 
vifed, is  againft  4aw  :  And  the  judgment  of  the 
fuperior  court,  fo  far  as  it  reverfes  the  decree 

of 


Supreme  Court  o?  Errors,  May  Term.  2S5 

of  probate,  ordering  lands  fpecifically  devifed     ^^{T£T 
to  be  fold  for  the  payment  of  pecuniary  lega-     t===a 
cies,  was  right; — but  the  fuperior  court  erred,       Cale 
in  adjudging  that  the  lands  thus  devifed  fliould      ^-^^^/^ 
ftand  charged  to  make   contribution   for  pay-  *^* 

ment  of  the  pecuniary  legacies,  and  in  proceed- 
ing to  apportion  each  devifee's  and  legatee's 
part  to  pay,  and  granting  execution  therefor. 
This  part  of  the  judgement  involves  the  prin- 
ciple, that  pecuniary  legacies  may  be  charged 
upon  lands  fpecifically  devifed  :,  But  the  con- 
trary of  this,  is  the  true  ground  for  reveriing 
the  decree  of  probate. 

It  is  the  province  of  the  fuperior  court,  on 
appeals  made  from  decrees  of  probate,  to  fix 
the  principles  of  law,  for  the  dire6lion  of  the 
courts  of  probate  ;  but  it  feems  not  to  be  au- 
thorifed  to  proceed  through  all  the  forms  to  a 
complete  fettlement^of  eftates,  as  a  prerogative 
court.  The  execution  of  the  law,  as  afcertain- 
ed  by  the  fuperior  court,  appertains  to  the 
courts  of  probate. 

If  the  fuperior  court  is  authorifed,  on  fuch 
appeals,  to  proceed  to  a  complete  fettlement  of 
eftates,  yet  the  manner  of  doing  this,  in  the 
prefent  cafe,  by  granting  executions  againft 
the  devifees  and  legatees^  to  compel  them  to  con- 
tribute their  proportion,  is  exceptionable  ;  for 
as  a  court  of  law,  in  which  capacity  the  appeal 
was  made,  it  concerned  the  Court  to  proceed 
according  to  the  forms  which  are  prefcribed 
for  the  fettlement  of  eftates,  and  are  the  rule 
of  the  courts  of  probate  ;  but  no  fuch  mode  of 
proceeding  is  known  in  the  law,  in  a  cafe  of  this 
nature. 


Ma 


-  286  Supreme  Court  of  Errors,  May  Term. 

May  and  his  Wife,  a^ainjl  Webb. 

A  guardian    TN  this  cafe,  the  original  aBion  was  book- 

appoTmcd'    A  debt,  brought  by  the  defendant  in  error, 

by  the  court  for  articles  delivered  to  Marthay  wife  o^  May, 

vitCudi!'    the  plaintiff,  before  marriage. — On  trial  by  the 

miiation  of  jury,  a  fpccial  verdi8:  was  returned,    finding 

Ihrmiro^r'is  thefe  faBs  :— **  That  faid  Martha,  while  fole, 

notofdifitt-    «  ^^^  before  her  intermarriage  with  laid  May, 

lawfully  ta    "  in  the  ycars   1773   and   1774,   being  then  a 

h^mfli/"iii  "  i^ii^or,  under  the  age  of  eighteen  years,  and 

hold  till  he    "more  than  fourteen  years,  and  poifeifed  of 

a"-^unieft^^  "  fufficient  cftatc  in  her  own  right,  did,  with 

iheguardian  *'  the  confent  and  approbation  of  Ezckicl  WiL 

from'^ffi'ce^    «  Uams,  Efq.   of  Weathershcld,  purchafe  and 

«racothcris  «  receivc  of  faid  Wtbby  the  feveral  goods  and 

acclpunce^  "  articles  charged  in  his  account,   to  her  own 

ofthccourr.  fi  ufe  and  benefit :  That  faid  Willia^ns  was,  by 

tr^ilzdc'  ''  the  court  of  probate,   duly  appointed  guar- 

by  a  minor,  «  ^^^lu  to  faid  Marthay  when  Ihe  was  of  the  age 

fowYr^^^f  a    **  of  nine  years  only,  her  father  being  then  dead, 

^  Vh^*"'      **  ^^^  ^°  other  guardian  was  after  ele£lqd  or  ap- 

confeL/i$    "pointed:  That  fhe  before,  and  at  that  time, 

o^"him^'  "?"  "  lived  with  her  mother,  and  not  with  faid  Wil- 

"  Hams  ;  and  that  the  articles  charged  were  all 

"  for  neceffaries,  and  fuitable  to  her  rank  and 

"  condition  :  That  they  were  by  faid  Webb  firft 

"  charged  to  faid  WilliamSy  without  his  exprefs 

"  agreement;  but  he  afterwards  difclaimed  and 

"  refufed  to   pay   for    them ;  whereupon  faid 

"  Webb  difcharged  him,   and  by  his  order  and 

"  direction,  charged  the  fame  to  faid  Martha.'* 

Upon  the  fads  found  in  the  verdiB,  the  6w- 

perior  Court  adjudged — That  the  guardianfliip 

of  Mr.  WilliamSy  by  virtue  of  the  appointment 

made  when  the  minor  was  nine  years  of  age, 

could  continue  only  till  fhe  arrived  at  twelve, 

and  was  of  age  to  choofe  for  herfelf :    That  the 

Jurety 


Webb. 


Supreme  Court  of  Errors,  May  Ttv.^.  tBj 

furety  given  for  his  faithful  performance  would     "^^gT" 
hold  no  longer;  and  no  fubfequent  acquief-     s===^^= 
cence,  or  implied  choice,   on  the  part  of  the       May 
minor,  could  continue  him  her  legal  guardian,      f^f^^ 
without  an  allowance  of  the  Judge  of  Probate, 
and  new  furety  given ;    and  that  the  contraQ: 
being  for  neceffaries,  might  well  be  charged  to 
the  minor. 

But  the  judgement  of  the  fuperior  court  was 
reverfed :  For, 

By  the  Court. A  guardian  to  a  mi- 
nor, appointed  by  the  court  of  probate,  while 
fuch  minor  is  not  of  fufficient  age  by  law  to 
make  choice  for  himfelf,  is,  in  judgement  of 
law,  guardian,  till  the  minor  arrive  at  full  age; 
unlefs  the  guardian  is  removed  from  office,  or 
another  is  chofen  by  the  minor,  after  he  arrive 
at  legal  age  to  make  choice,  to  the  acceptance 
of  the  court  of  probate  ;  or,  unlefs  the  guardian 
is  appointed  with  exprefs  limitation  of  time  ; — 
which  is  not  the  prefent  cafe. 

A  contraQ:  made  by  a  minor,  under  the  pow- 
er of  a  guardian,  and  with  his  confent  and  ap- 
probation, is  by  law  binding  upon  the  guardian, 
and  was  fo  before  the  revifion  of  the  ftatute  laws 
of  this  ftate,  in  the  year  1784. 

In  this  cafe,  it  appears  by  the  record,  that  the 
debt  demanded,  was  contra6led  by  the  confent 
and  approbation  of  Ezekiel  Williams,  Efq.  who 
had,  before  the  contraft,  been  appointed  guar- 
dian to  faid  Martha,  and  appears  to  confider 
himfelf  as  a6ling  in  that  capacity,  at  the  time 
when  the  contra6l  \vas  made.  But  if  fuch  con- 
ftruQion  may  not  fairly  be  given,  and  the  law 
was  otherwife  than  is  here  adjudged,  ftill,  in 
this  cafe,  it  would  be,  that  a  minor,  without  any 
guardian,  by  the  confent  and  approbation  of 
faid  Williams,  took  the  articles  charged,  and 
with  an  underftanding,  on  the  part  of  the  cre- 
ditor, 


a8S  Supreme  Court  of  Errors,  May  Term. 

^^JZqT  ditor,  that  they  were  to  he  charged  to  Williams, 

a==2==  and  in  fa6t  were  fo  charged  : — TJierefore,  on 

May  either  principle,  Williams  was  the  original  debt- 

Ggainjl  QYy  and  no  difcharge  given  to  him,  can  operate 

^^^^*  to  fix  a  legardaim,  in  favour  oiWchhy  upon  faid 

Martha, 


County 


COUNTT  OF   LlTCHFIfiLfi,   AuCUSt  TeRmT  &^§ 

Veck  a^ainft  Tones.  ^    ^""^ 

^     J    -y  Peck 

ERROR  from  the  judgement  of  a  Jufilce  ^ga^nji 
of  the  Peace,  upon  a  bill  of  exceptions.  'J°^®^* 
Jones  brought  his  a6lion  of  book-debt,  againft 
Feck^  before  a  Juftice  of  the  Peace. — The  ac- 
count exhibited  on  trial  confifted  of  only  one 
article,  viz.  A  charge  of  305.  money,  paid  to 
B.  r.  for  the  ufe  of  J.  G.  for  which  the  plain- 
tiflF  alledged  that  the  defendant  had  promifed 
to  pay  him  an  equal  fum  in  flieep. — On  trial 
of  this  cafe,  it  was  objefted,  ^  that  faid  article 
was  an  improper  charge  for  book  account,  be- 
ing merely  a  right  of  aftion,  founded  upon  aa 
executory  agreement  ;  and  that  the  plaintiff*s 
own  oath  could  not  be  admitted  in  proof:  For 
that  the  oaths  of  parties  are  not  by  law  admiffible, 
to  prove  any  fpecial  agreement  between  them. 
But  the  objedions  were  over-ruled  by  the 
y  Jufiicey  and  a  judgement    rendered   for   the 

plaintiff. A  bill  of  exceptions  being  filed, 

and  the  caufe  brought  up  by  writ  of  error,  the 
judgement  of  the  Juftice  was  reverfed,  without 
argument. 


CnvKCK  againfi  Bellamy, 

A  PLEA  in  abatement,  that  errors  in  hvr, 
and  errors  in  fatl,  were  joined  in  the 
fame  writ,  was  offered  the  fecond  te/m,  to  a 
writ  of  error. 

It  was  obje8;ed,  that  the  plea  came  too  late* 
But, 

By  THE  Court. There   is   no  rule  fet- 
tled refpeaing  pleas  in  abatement  to  writs  of 
N  n  error. 


zgo  County  or  Litchfield,  August  Term.. 

^TgT^  error.     The  praftice  hath  been  to  admit  them 

===^:i=i  within   the  rule   of  other  pleas,  and  the  plea 

Church  now  oflFered  is  in  nature  of  a  demurrer; — it  i* 

againft  therefore  admiffible. 
Beilamy. 


Bo  ST  WICK  againji  Hawley. 

A  CTION  on  the  cafe,  for  flanderous  words 
■XJL  fpoken  of  the  plaintiff,  refpetling  his  pro- 
feffion  of  niafter  of.  a  vefTel.  The  declaration 
concluded  in  this  manner  : — "  That  by  means 
"  thereof,  the  plaintiff  had  lo'fl  his  employ,  in 
**  his  faid  bufmefs  and  profeffion  of  majler 
"  and  condiiMor  of  veffels ;  is  reduced  from 
**  competency  to  want,  and  is  expofed  to 
"  punifhment,'*  &c. 

A  depofition  was  offered  to  prove  fpecial 
damage. 

Mr.  Tracy,  for  the  defendant,  objeQed,  on 
the  ground,  that  no  fpecial  damages  were  al- 
ledged  in  the  declaration ;  and  he  cited  Brown^ 
ing  vs.  Newman,  i  Str,  666. — BuL  Niji  Prius^ 
-y. — Alfo,  C2i(c  of  Bojlwick  vs.  Nickel/on,  ante. 
65. — To  fhow  that  fuch  a  conclufion  was  not 
held  to  be  an  allegation  of  fpecial  damage. 

And  the  depofuion  was  excluded  by  the 
court. 


Carter 


CouN'TY  OF  New-Haven,  August  Term.  294 

Carte Pv  ^^^2^  Bellamy. 

A    CTION'--Affuiiiprit. — P/e^,  Setting  forth  ko  parol 
x\   a  feitlement  and  difcharge,  in  the  follaw-  admiflib^e^ 
ing  words : — "  Know  all  men,  by  thefe  prefents,  t » sho^^-  the 
"  That  I,  John  Carter,  have  received  63/.  165.   '^^^oi^ll^C^ 
*' 4^.  \z.^N^\\\mox\tYyO^ Matthew  Bellamy y  in  full  Sn .fabric- 
*'  of  all  debts,  dues  and  demands,  of  every  kind  con'udiaitf 
^*  whatfoever,  from  the  beginning  of  the  world 
''  to  this  day.'* 

Replication, — Confeffing  the  difcharge  plead- 
ed, but  alledgingthat  it  was  given  in  fettlement 
of  tranfaftions  and  demands  not  included  in 
the  prefcnt  a8:ion,  and  traverfmg  that  (aid  fum 
of  63^165.  4.d.  was  received  in  full  fatisfaclion  ; 
and  that  faid  writing  was  given  in  difcharge  of 
this  aclion. 

Witneffes  were  produced. to  prove,  that  faid 
writing  was  not  given  in  difcharge  of  this  ac~ 
lion;  but  were  not  admitted  :  For, 

By  the  Court.- The  difcharge  is  expli- 
cit, and  contains  no  ambiguity;  therefore,  no 
parol  evidence  can  be  admitted,  to  ihow  the 
extent  or  legal  operation  of  it;  nor  can  fuch 
evidence  be  admitted,  to  oppofe  or  coutradicl 
the  writing. 


Beckman,    SoUy    and    Gold,    ag-ainft    Isaac  ^'M9>^^■^■^^t 

lOMLINSON     <2?li    RUSSEL      TOMLINSON.  ton,   and 


ton. 


ACTION— Book-debt.— P/^^— That    the  ^'c-con, 
defendants  were  profecuted  hy  the  (el e 6:-  fh^ 
men  of  the  town  of  Woodbury,    in  Litchfield  o- ■' 
county,   for  having  put  themfelves  under  the  rTt-"[hi 
protedion  of  the  enemies  of  the  United  States:  <^"'«'^iiiion- 
N  n  2  and 


does  nf.tbaf 
recovc-f 
any  d'  bt 

bic- 


S^^  .County  of  New-Haven-,  August  Term. 


ijBT'     ^^^  ^^^^^  their  whole  eflate  was  confifcated,  and 
*^==-^     adjudged  to  be  forfeited,  to  the  ufp  and  benefit 
Becfcman,   of  the  Itale  of  Conne6licut :    That  an  admini- 
^•r*        ftrator,  and  commiffioners,  were  appointed,  to- 
TomTinfon  3-dminifler  and  fettle  their  eilate,  who  duly  ad- 
vertifed  their  appointment  in  the  public  papers^ 
and  rcquelled  all  creditors  to  exhibit  their  claims 
of  debt  againd  the  defendants.      And  faid  ad- 
miniilrator  proceeded  to    the  compleat  fettle- 
•ment  of  their  eftates,   which  was  found  to  be 
fuihcient  to  pay  all  the  claims  exhibited  to  faid 
■     eommiiTioners,    and  all  charges  thereon  ,•  and 
alfo,  there  w^as  a  furplus  remained,  more  than 
fufficient  to  pay  and  fatisfy  the  plaintiffs  debt 
and  demand,  and  all  other  juil  demands  againd 
the  defendants;  and  that  the  claim  af  the  plain- 
tiffs being  founded  upon  a  contract  antecedent 
to  faid  judgement  of  confifcatiori;,  ought  to  have 
been  exhibited  in  due  and  legal  manner  againft 
the  adminiftrator  of  the  eftates  of  the  defcn- 
•     dants,    and  cannot  now  be  fupported  againft 
ihem. 

Replication, — That  the  plaintiffs  were  inha- 
bitants of  the  ftate  of  New- York,  and  had  no 
knowledge  of  the  proceedings  againft  the  de- 
fendants eftate,  until  the  whole  was  finifhed  ; 
and  that  they  had  no  opportunity  to  exhibit 
their  claim. 

To  this  there  was  a  demurrer,  and  joinder 
in  demurrer — and  judgement  for  the  plaintiffs. 

By   the  Court. That  the  defendants 

committed  treafon,  and  thereby  incurred  a  for- 
feiture of  their  eftate  to  the  public,  gives  them 
no  claim  to  be  difcharged  of  their  debts,  nor 
« Mirks  vj.  i^ad  any  effeB:  to  diffolve  their  contraQs.*  And 
Aa«.T»8-  the  provifion  under  the  aft  of  conlifcation,  for 
letting  in  creditors  upon  the  eftate  forfeited  to 
the  public,  wars  in  favour  to  the  creditors,  and 
intended  folely  for  their  benefit^  that  they  might 

not 


County  of  New-Haven^  August  T^rm.  295 

not  lofe  their  debts:  But  their  waving  the  bene-  *^To~~" 

fit  of  that  provifiOD,  does  not,  by  the  words,  or  ===L:=4i 

any  implication  of  the  a61,  bar  their  right  of  re-  Beckman, 

covery  againii  the  perfon  of  the  debtors,  or  the  ^c. 

ellate  they  might  afterwards  acquire,   or  had  at  ^^<^'!f^-f 
the  time  of  confifcation,  either  in  this  ilate  or 
el  fe  where. 


Rose  ^wi  Russel  againji  Brov^tno 

ERROR  from  the  courtof  common  pleas. — 
jBrow7i  brought  his  aQion  to  the  court  of 
common  pleas,  on  a  promiiFory  note,  dated 
13th  of  April,  A.  D.  1778,  payable  in  one 
year.  The  defendants  pleaded  a  tender  in 
continental  bills,  at  the  day  of  payment  (it 
then  being  the  currency^  of  the  country.)  And 
there  was  a  trial,  and  judgement  for  the  plain- 
tiff; which,    on  writ  of  error,   was  after-wards 

reverfed  by  the  fuperior  court.— -After  the 

reverfal  of  faid  judgement,  viz.   In  t\\Q  month 
of  December,  1785,  Brozon  demanded  o^  Rofe 
and  RuJJ'cl,  the  money  faid' to  have  been  ten- 
dered, and  upon  their  negleQ  to  deliver  it,  de- 
manded payment  of  the  note ;  which  was  not 
complied  v/ith. — A  fuit  v/as  then   commenced 
upon  the  fame  note,  before  the  court  of  com- 
mon pleas.      The  defendants  pleaded  the  for-^ 
mer  fuit  and  judgement,  fetting  forth  the  whole 
record. — The  plaintiff  replied,    the  writ  of  er- 
ror and  reverfal,    and  x\\q  fubfequent  demand 
and  refufal. — The  defendants  rejoined — That 
the  continental  bills  tendered   at  the  day  of 
payment,  were  again  offered  and  tendered  to 
the  plaintiff  in  court,   at  the  time  of  trial,   be- 
fore the  court  of  common  pleas,  mentioned  in 

his 


294  CoiTHTir  OF  Nhw-Havem,  AuausxTERM*' 

"^1^^.  ^^^  P^^^;  ^"d  ^hat,  according  to  the  courfe  and 
*===  order  of  faid  court,  and  with  the  knowledge  of 
Rofe,  &c.  the  plaintiff,    faid  bills  were  delivered  to  the 

sfow^.  ^^^^^  ^^  ^^^^  ^^"^^^^  ^^^  ^^^  ^^^  ^^  ^^^^  plaintiff  J 
and  that  faid  bills  having  been  kept  by  the  de- 
fendants, ready  for  the  plaintiff,  from  the  time 
they  were  firll  tendered  till  they  were  deliver- 
ed into  the  cuftody  of  the  clerk  of  faid  court, 
had  become  depreciated,  and  of  no  value,  and 
ceafed  to  be  a  currency ;  and  that  they  have  been 
kept  among  the  files  of  faid  court,  for  the  plain- 
tiff, till  the  prefent  time,  and  were  not,  at  the 
time  of  faid  demand,  on  the  14th  day  of  De- 
cember, 1785,  in  the  hands  of  the  defendants; 
and  that  laid  bills  are  now  here  in  court,  ready 
for  the  plaintiff. 

To  this  there  was  a  demurrer,  and  joinder 
in  demurrer;  and  judgement  was,  by  the  court 
of  common  pleas,  for  the  plaintiff. 

The  exceptions  to  this  judgement  were  : 

1.  That  the  plaintiffs  in  error,  having  lodged 
faid  money  with  the  clerk  of  faid  court,  as 
aforefaid,  were  thereby  exonerated  from  any 
liability  to  pay  faid  note. 

2.  That  faid  bills  being  wholly  depreciated, 
when  the  defendant  in  error  made  the  demand 
mentioned  in  his  replication;  therefore,  no  da- 
mage could  have  been  given  by  faid  court  above 
the  value  of  faid  bills. 

Judgement  of  the  court  of  common  pleas 
affrmed. 

By  the  Court. The  rejoinder  of  the 

defendants  in  the  aQion  was  infufhcient : 

1.  Becaufe  it  did  not  appear  from  their  plea 
in  bar,  that  the  tender  relied  upon  was  in  fa6l 
made;  but  only  that  it  had  been  pleaded,  and 
demurred  to,  in  a  former  fuit  upon  the  fame 
note;  the  judgement  in  which  fuit  was  after- 
wards reverfcd,   and  the  ^reverfal  removed  all 

effea 


County  o?  New-Haven,  August  Term.  295 

cffeft  of  the  pleadings  therein  ;  fo  that  though  "^TgT* 
the  record  remained,  it  was  not  evidence  of  the  ==^=i 
truth  of  the  fa6ts  therein  averred  or  admitted.   Rofe,   &c. 

2.  Becaufe,  admitting  the  defendant's  plea  <^g^i^J^ 
in  bar  good,  both  as  to  the  manner  and  matter  ^'■*^**'^^ 
of  it,  yet  the  benefit  of  the  tender  was  loft,  by 
the  fubfequent  demand  and  refufal.  It  was 
not  a  fufficient  reafon  for  the  refufal,  that  the 
money  when  fo  demanded  had  depreciated  and 
ceafcd  to  be  a  circulating  medium  ;  nor  that  it 
was.  lodged  with  the  clerk  of  .the  court  in  the 
former  fu it ;  for  as  the  plea  of  tender  was  there 
decided  againft  the  defendants,  the  money  re* 
mained  theirs,  and  it  behoved  them  to  take 
care  of  it. 

Note. — This  judgement  was  qfierwards  of* 
jirmed  in  thefiiprcm^  court  cftrror^ 


£^Fo 


Cornifh. 


296  CouMTY  OF  Hartford,  Sept..  Term* 

Ei^o  againji  Cornish. 

''''''.Ivl      TT  R^^R  fi'om  the  judgement  of  a  Jufticc  of 

JLi   the  Peace. Cornijli  brought  his  atlion 

againft  the  plaintiff  in  error  (Ihe  being  execu- 
trix of  the  laft  will  and  teliament  of  Ifaac  EnOy 
deceafed)  declaring — *^  That  he  was  a.colieft- 
"  or  of  ftate-taxes,  levied  on  the  1^0:  of  the  polls 
^*  and  rateable  eftate  of  the  inhabitants  of  the 
**  town  of  Symfbury,  in  the  year  1761,  and  re- 
*'  ceived  from  the  treafurer  of  ihe  flate  of  Con- 
**  ne8;icut,  a  legal  warranty  authorizing  him  to 
^^  colleQ  of  the  feveral  inhabitants  of  faid  town, 
^^  their  proportion  of  faid  tax;  and  ihat  faid 
^'  IJaac  Eno  was  then  living,  and  his  proportion 
^*  of  faid  tax  was  afcertained  in  the  bills  deli- 
^^  vered  to  the  plaintiff,  to  be  18/8.  lawful  mo- 
"  ney,  which  was  payable  by  the  laft  day  of  De- 
^*  cember,  1762  ;  and  that  faid  Ifaac  died,  with- 
*^  out  paying  any  part  of  faid  rate,  though  the 
"  plaintiff  had  feveral  times  demanded  payment, 
"  and  forbore  to  dillrain,  at  the  requeft  of  faid 
'**  Ifaac  ;  whereupon  he  became  indebted  to  the 
**  plaintilFfor  faid  rate,  the  intereft  thereof,  and 
"the  plaintiff's  fees,  amounting  to,  &c. — and 
*'  that  tlie  defendant  (faid  Ifaac' s  executrix) 
"  had  never  paid  the  fame,  though  often  de- 
"  manded;  v/hereupon  an  adion  hath  accru- 
"  ed,''  &c. 

The  defendant  pleaded  a  fettlement  and  dif- 
cbarge,  in  the  life-time  of  the  deceafed;  which 
was  traverfed,  and  iffue  joined. 

The  judgement  was  entered  up  in  thefe 
words  : — "  Tnat  after  hearing  the  witneffes 
**  and  pleadings  in  this  cafe,  the  court  is  of 
opinion,  that  the  defendant's  plea  in  bar  is 
infufficient ;  and  judgement  is  given,  that  the 
**  plaintiff  fhall  recover  of  the  defendant,  40s. 
**  damage,  and  coft.'*  &c.  Three 


u 


County  of  HartforDj  Sept.  Term.  S97 

Three  exceptions  were  taken  to  this  judge-     ^TbV! 
ment :  =^       ^ 

1.  That  the  judgement  contains  no  anfwer       E»o 
to  the  ifTue,  but  is  upon  a  point  foreign  to  the    ,^^^'^i 
controverl)^. 

2.  That  the  judgement  and  execution  is 
againft  the  defendant  perfonaliy,  when  it  fhould 
have  been  againft  her,  as  executrix,  and  the 
goods  and  efiate  of  the  teftator  in  her  handsa 

3.  That  upon  the  face  of  the  declaration  it 
is  manifeft,  titat  the  defendant  could  not  be  li- 
vable in   debt  for  faid   taxes,    which  are  more 

than    twenty  years  old,    and  the  law  will  pre- 
fume  have  been  paid. 

Judgement  of  the  Juflice  reverfed. 
By  the  Court.- — (^JT'^^^^^*?  Sherman  ah" 
fent.) — If  an  atlion  is  neceffary,  or  doth  lie 
againft  the  adminiftrator  or  executor,  upon  a 
tax-warrant,  for  taxes  due  from  the  deceafed, 
he  can  only  be  liable  in  that  capacity  ;  where- 
as, in  this  cafe,  judgement  was  rendered  againft 
the  executrix,  in  her  private  capacity. 


MuMFORi)  againjl  Wright  and  Otha's, 

ACTION  on  a  promiffory  note,  dated  the 
25th  of  April,  1785. P/(?^,— That  at 

the  time  of  executing  faid  note,  the  plaintift^ 
was,  and  ever  fmce  hath  been,  an  inhabitant, 
of  Newport,  in  the  ftate  of  Rhode-Ifland,  and 
fubjea  to  the  laws  of  fai.d  ftate  ;  and  faid  note 
was  payable  to  die  plaintiff  in  faid  Newport : 
And  that  the  General  Affembly  of  faid  ftate, 
at  their  fefTions  in  May,  1786,  palfed  a  certain 
ftatute  law  (which  law  is  recited  at  large  in  the 
O  o  pka) 


298  County  of  HARTroRD,  Sept.  Terr*. 

"'tST'    t^^^)  ^naQing,  that  the  paper  bills  of  faid-ftatc 
=====     fhould   be   a  good  and  lawful  tender,   for  the 
Mumford    complete  payraent  and  final  difchargc  of  all 
^V"^     debts,  dues,  or.  contraHs,  or  that  fhould  after 
^^^  ^'    become  due  or  contra6led,  of  every  kind  and 
nature,  v/ithirt.faid  .ftate  ;  and  that  if  any  cre- 
ditor, or  creditors,  their  lawful  agent  or  attor- 
ney,  fhould  reidjfe  to  receive  ajiy  of  faid  cbiils, 
in  difcharge  of  any  debt  or  demand,    in  that 
cafe,  the  debtor  might  make   application  to  a 
[uftice  of  the  Superior  Court,    or  Court  of 
Common  Pleas,  in  the  county  where  faid  debt- 
or lives  or  refides,   &c.  prefcribing  the   mode 
of  proceeding  : — And  that  the  defendants. did 
tender  faid  bills,  in  purfuance  of  faid  law,  and 
in  manner  and  form  there  directed;  by  means 
whereof  they  were  exon.erated  and  difchargcd 
from  faid  note,  &c. 

Replication. — Reciting  an^^explanatory  aQof 
the  affembly  of  the  (late  of  Rhode-Ifland,  con- 
fining the  benefits  of  the  firlt  a8:  to  citizens  of 
thatllate  ;  to.  which  there  was  a  demurrer — 
and  judgemerrt  for  the  plaintifi^. 

By  the  Court.— f^i^^^^  Sherman  ab^ 
fent.) — How  far  an  ex  poJlJaBo  law  can  ope- 
rate, to  impair  contrads ;  x)v  how  far  we  are 
bound  to  regard  ftatutes  of  another  jurifdidion, 
which,  w^e  may  apprehend  to  be  unjuft,  is  not 
necellary  in  this  cafe  to  determine  :  For  the 
.defendants  do  not  come  within  the  ftatute  re- 
lied upon,  not  being,  at  the  time  of  the  tender, 
citizens  of,  or  refident  in  the  ftatc  of  Rhode- 
Ifland  ;  10  perfons  of  which  defcriptioii  only 
:the  benefits  of  the  .a£l-extaid. 


;% 


^tUSTIN 


GouNTY  OF  New--London,  Sept,  Term.  299 


GusTiN  againjl  Bratt 


LE. 


ERPvOR  from  the  court  of  common  pleas. —  Abfence  at 
The  defendant  in  error,  being  adminiftra-  ^-i/hout  the 
tor  on  the  eftate  of  William  Brattle^  Efq.  de-  i^rim^Um 
ceafed,  brought  his  achon  ot  debt,  againit  tne  sra.es,is«0c 
plaintiff  in  errof^  declaring  upon  a  bond  given  ^^^'f^^^^hj' 
to  the  deceafed,    dated  the  5th  day  of  June,  intenrofthe 

cy,  '  fl.ntuce  of  ii- 

■^75  .        ,  .  mitatioHs. 

The  (latute  of  limitations  v/as  pleaded  in  bar,  Nordoesto- 
which  enaBs—^'  That  no  uiit  fball  be  maintain-  \lf^  ^tf,""^ 
"  ed  on  any  bond,    but  within  feventeen  years  ccuifccf  ac- 
"  after  an  action  on  the  fame  fhall  accrue."—  c  ucs^ome 
fexDunG[inff  the  time  of  the  late  war)— With  a  7^-^'  "  '^f 
provifo — **  That  perfons  over   fea,  or   legally  th   Mature. 
"  incapable   to  brin^  their  actions,   may  bring  A'^r^-c^'i"- 
"  tiiem   withm   four  years  after  coming  irom  mcmiortA 
"  over  fea,  or  becorning  legally  capable."  fo orX^ihi^- 

Replication.—Thdd  in  the  month  of  March,  tme,  duVcc 
1776,  the  faid  William  Bratiic  went  over  lea,  '^!^^^ii^^^,l^ 
to  Halifax,   in   the  province  of  Nova-Scotia,  vMa^  are 
and  there  remained  till  the  26th  day  of  O6I0-  af^r'^Jhe^l. 
ber,   1776,  when  he  died   inteftate ;  and  that  n^itauon 
adminiitration  was  not  granted  on  his   eftate  effect^^ 
until  the  9th  day  of  Oftober,  1784  ;  and  there-  Nordoestiie 
fore  no  perfon  was  legally  capable  to  bring  an  jedgemVnc 
aftion  on  faid  bond  from  the  26th  day  of  06to-  f  l^^^"^^^ 
bcr,    1776,   to  the  9th  day  of   Oftober,   1784,  aetion,  ard 
when    the    plaintiff  became   legally    capable:  ^^f'^^/^'ive 

11  .\  ^.  '        1         •    I  .        a  bond  out 

and  th-ed  this  attion  was  commenced  within  ofcheftamtc- 
four  years  from  faid  oth  day  of  06tober  : — 
And  that  the  late  war  commenced  the  19th  day 
of  April,  A.  D.  1775,  and  terminated  the  4th 
day  of, May,  1783  i  and  that  within  feventeen 
years  of  the  bringing  the  a8:ion,  exclufive  of 
the  war,  there  was  a  payment  made,  and  balance 
acknowledged  to  be  due,  which  was  fubfcribed 
to  by  b'oth  partie's,  on 'the  back  of  the  bond, 
O  o  2  in 


CauNTY  OP  New-London^  Sept.  Term, 

in  thefe  words  : — "  March  14th,  1764,  due  on 
"  this  bond,    one    hundred  iorty-five  pounds 
Guftin      "  four  iliillings  and  iix-pence. 
^igatnfi  «  William  Brattlt, 

■^^^"^^-  ^  '*  Thomas  Gujiinr 

On  demurrer,  judgement,  by  the  court  of 
common  pleas,  was  for  the  plaintiff. 

The  general  error  being  aihgned,  threepoints 
were  made  by  the  counfel : 

1.  That  the  obligee  was  over  fea — and  fo 
within  the  faving  of  the  (latute. 

2.  That  the  adminiftrator  was  legally  inca^ 
pable  to  bring  his  aclion,  until  after  letters  of 
adminiiiration  were  granted. 

3.  That  an  acknowledgement  of  the  debt, 
within  feventeen  years^   faved  the  bond  out  of 

^  the  itatute. 

'  This  cafe  was  argued  lad  term,  by  Mr.  Hyde 

and  Mr.  Babcock,  for  the  plaintiff  in  error,  and 
by  Mr.  Huntington  and  Mr.  Farfons,  for  the 
defendant  j  and  the  queftion  being  of  confide- 
rable  importance,  was  ordered  to  lie  for  fur- 
ther argument.  It  was  again  argued  this  term, 
and  the  judgement  of  the  court  of  common 
pleas  reverfed. 

By  the  Court.-- As  to  the  firll  point-— 

Halifax  is  not  over  fea,  but  on  the  main  hnd  ; 
and  not  at  fo  great  a  diftance  as  any  place  over 
fea.  Barely  its  being  out  of  this  (tate,  or  ju- 
rifdi£iion,  does  not  bring  it  within  the  words 
or  reafon  of  the  provifo.  Beyond  feas^  in  the 
Englilh  ftatute  of  limitations,  of  the  21  jfas.  1, 
has  been  adjudged  not  to  extend  to  Scoiland, 
though  without  the  jurifdiBion  of  the  courts  of 
England.  And  in  King  and  Walker*s  cafe,  1 
Black,  286,  it  was  held,  that  the  words  fhould 
be  literally  adhered  to  ;  for  that  the  ftatute  be- 
ing a  very  beneficial  one,  the  favings  out  of  it 
fhould  not  be  enlarged  by  conffru6iion. 

But, 


County  of  New-London,  Sept.  Term.  301 

But,  admitting  Halifax  to  be  over  fea,  within     ^^^ 
the  meaning  of  the  ftatute,  ftill  the  obligee,  as     r-rr—-— 
he  removed  there  long  after  his  right  of  aBion      Guftin 
accrued  (viz.  but  two  months  before  the  feven-      againjl 
teen  years  expired)  is  not  within  the  faving  ; —     Brattle. 
it  extends  only  to  perfons  over  fea,  when  their 
caufe  of  adion  accrues.     The  faving  for  abfen- 
tees,  in  the  ftatute  limiting  the,  time  of  entry  in- 
to lands,  is  exprefsly  fo;  and  this  muft  be  the 
underftanding  here.     It  is  a  perfon's  own  foU 
iy,  if,   after  a  limitation  begins  to  run  againft 
him,  he  removes  out  of  the  country,  and  makes 
no  provifion  for  the  recovery  of  his  debt.     In 
£oi  and  Hill's  cafe,  1  Wiljon,  134,  upon  the  fta- 
tute of  James^  it  was  adjudged,  that  a  creditor, 
after  caufe  of  adion,  removing  beyond  fea,  and 
remaining  there  till   his  death,    did  not  bring 
him  within  the  faving  of  abfent  plaintiffs. 

2.  As  to  the  adminiftrator*s  right  of  four 
years  to  fue,  notwithftanding  the  feventeen  are 
elapfed — it  is  not  within  the  provilo  of  the  aft. 
The  words  are — "  Perfons  legally  incapable 
^^  to  bring  their  aftions,  may  bring  them  in 
'^  four  years  after  becoming  legally  capable."  * 
The  difability  to  bring  their  actions  here  men- 
tioned, fuppofes  the  perfons  under  it  to  have 
at  the  fame  time  a  right  or  caufe  of  aftion  veft- 
ed  in  them  ;  and  does  not,  therefore,  apply  to 
an  adminiftrator,whofe  right  or  caufe  of  adion, 
and  capacity  to  fue,  commence  at  one  and  the 
fame  time.  In  the  cafe  of  Gary  et  ux  vs.  Ste- 
vsn/on,  Salk.  4.2iy  upon  the  ftatute  of  ^.^wes, 
the  adminiftrator  was  indeed  allowed  fix  years 
after  adminiftration  granted;  but  it  was  ex- 
prefsly upon  the  ground  (whether  that  would 
juftify  the  decifion  or  not)  that  the  defendants 
receipt  of  the  money  fued  for,  being  after  the 
death  of  the  inteftate,  was  not  caufe  of  adion 
in  him,  and  that  right  of  atlion,  or  the  plain- 

'  tiff's 


302  County  OF  New-London,  Se?t.  Term. 

1787T  ^^^'^  ^^•^^^  never  accrued  till  adminiftration  was 
=^--=-^  gr^ntQd,  In  ^  Wilcocks^,  c-d^^Cy  Stra.  907,  the 
Guiiii  plaintift*,  w/ho  was  adminiftrator  to  an  admini-* 
fg-'i''^  Itrator,  and  lued  four  years  after  the  death  of 
^:'''*  the  fir  ft  adminiftrator,  who  fued  within  fix 
yeaiiS  of  the  promife,  and  died  pending  the 
fiiit,  failed  in  his  a8.ion  ;  and  it  was  there  hoi- 
dcUy  that  he  cQuid  have  only  one  year,  and  that 
upon  the  equity  p/.tfie  caufe,  v/hich  allows  one 
year  to  commence  a  new  fuit,  where  the  judge- 
ment was  arrefted  or  reverfed.  A  reverfion.er 
cannot  have  error  after  twenty  years,  thoiigK 
his  title  did  not  accrue  till  after,  notwithftand- 
ing  the  faving  ciaufe  for  difabied  perfons  in 
the  ftatute  in  that  cafe.  ^/rt?.  1257. — Provifos 
for  perfons  under  difability,  can  only  introduce 
the  difabied  perfons,  and  not  thofe  v/ho  were 
never  under  any  difability.  An  adminiftratoi- 
comes  but  in  place  of  the  inteftate,  and  is  in 
cohtemplation  of  law,  as  to  ftatutes  of  limita- 
tion, the  fame  perfon.  If,  having  right  to  ad- 
miniftration, he  doth  not  take  it  as  foon  as  the 
inteftate  dies,  it  is  his  latch,  but  not  his  difabi- 
lity. The  rule  is,  with. regard  to  ftatutes  of 
limitation,  as  was  held  in  Gr^jy' 5  cafe,  Stra.  556, 
that  the  limitation  having  once  began,  the  fta- 
tute ryns  over  all  mefne  a6is,  as  bankruptcy,  co-^ 
vtrturty  infancyy  Sec,  The  adminiftrator,  there- 
fore, in  the  prefent  cafe,  is  not  within  the  fav- 
ing of  the  ftatute  for  difabied  perfons.  Nor 
did  he  fue  fo  foon  after  taking  adminiftration 
as  he  might  have  done,  having  fuffered  two  years 
to  elapfe.  Nor  did  right  of  aftion  upon  this- 
bond  ever  veft  in  him,  the  feventeen  years  hav- 
ing expired,  and  the  bond  being  dead  long  be- 
fore his  letters  of  adminiftration  were  taken  out. 
3.  As  to  the  remaining  point — That  the  ac- 
knowledgement of  the  debt  within  feventeen 

years,  faves  the  bond  :^— 

There 


Braitle^ 


County  of  New-London,  Sept.  TfiRNf,  303 

There  Is  no  faving  for  fuch  a  cafe,   in  the     ''^{n^T, 
words    of  the  ftatute.     Tlie  doubt  upon  this     — — =^ 
point  doth  not  arife  from  the  words  of  the  fla-      Guflin 
tute,  or  any  praQice  that  hath  obtained  upon  it,      H^^^^ft 
but  from  the  pradice  upon  the  Engliih  ftatute 
of  the  21  jCi^'   1,  which  in  fimilar  terms  limits 
aQ:ions  upon  fmiple  contracl  debts  to  fix  years ; 
yet  there  it  is  allowed,.ihatan  acknowledgement 
of  the  debt  within  fix  years  faves  it.      The  rea- 
fon  of  which  is  not,  as  hath  been  fuggefted  in 
this  cafe,  that  the  acknowledgement  of  the  debt, 
by  removing  the  prefumption  of  its  having  been 
paid,  takes  it  out  of  the  mifchief  of  the  ftatute. 
No  decifion  has  gone  on  that  ground,  and  it 
would  be  to  fave  alfo,  th^  trefpaffes  limited  in 
the  fame  ftatute,   where,    within  the  limitation 
there  has  been  an  acknowledgement  of  the  faB, 
and  that  fatisfaQion  has  not  been  made  ;  which 
none  have  fuppofed.    And  although  a  prefump- 
tion of  fuch  kind  of  debts  being  fettled,  when 
not  fued  for  within  fix  years,  and  the  difficulty 
of  preferving  evidence  of  the  fettlement,  were, 
doubtlefs,  reafons  which  led  to  the  adoption  of 
the  ftatute,  as  a  general  rule  ;  yet  it  is  not  ne« 
ceftary  that  every  cafe  fhould  be. attended  with 
thofe  particular  circumftances,  in  order  to  its 
being  within  the  ftatute,   any  more  than,   that 
every ,  perfon  under  twenty-one  years  of  age 
fhould  be  wanting  in  difcretion,    in  order  to 
bring  him  within  the  general  favings  of  law  for 
minors.     But  the  true  reafon  why  an  acknow- 
ledgement of  the  debt  within  fix  years,  is  faid  to 
revive  or  take  out  of  the  ftatute,  is,  that  the  fta- 
tute only  takes  away  the, remedy,  but  doth  not 
extinguifh  the  debt.     That  debt  remains,  and 
is    good  confideration   of  a  promife  to  pay  ; 
which  being  in  fatl  made,  or  there  being  an 
acknowledgement  of  the  debt,  which  is  confi- 
dered  as  evidence  of  a  promife,  a  new  right  of 

adioH 


3(^4  County  of  New-Lond(5^n,  Sept.  Term, 

=^Tgr*     aftion  accrues,  founded  upon  the  new  promife. 
—LJIL     See  ^  Bac.  Abrid.  157. — Ld,  Raym.  389,   420, 
Guftin      741. — Burr.  2628. — And  in  the  cafe  of  Green 
againji     and  Cr<2;?2^,  Ld,  Raym,  1101,  which  was  an  af- 
Brattle.     fumpfit  by  an  executor,   laid  upon  a  promife 
made  to  the  teftator,  and  non  ajjkmpfit  infra 
Jk^x  annos  pleaded ;  and  upon  evidence,  it  ap- 
pearing, that  after  the  death  of  the  teftator,  and 
fix  years  from   the  time   of  the  cotitraft  had 
clapfed,  the  defendant  owned  the  debt  to  the 
executor,  and  promifed   to   pay  it ;    and  the 
queftion  being,  whether  that  evidence  would 
maintain  the  ifTuej  the  court,  after  an  advife-^ 
ment,  were  all  of  opinion,   that  it  would  not ; 
becaufe  the  promife  to  the  executor  was  out 
of  the  iffue  ;   but    that  it  would   have    been 
otherwife,  if   the  promife  had  been  made  to 
:  the  teftator,  within    fix  years.      It  is  upon  the 
new  promife,  therefore,  that  the  aftion  is  laid, 
and  fupported  in  the  pra6lice  upon  the  ftatute 
■of  James  \  and  it  would  be  making  void  the 
ftatute  to  admit  the  contrary. 

But  what  hath  a  new  promife  to  do  in  the 
prefent  cafe  ?  This  is  not  an  affumpfit,  but 
debt  upon  a  bond.  Nor  could  evidence  of  a 
promife  (which  is^  the  moft  the  acknowledge- 
ment of  the  debt  can  amount  to)  be  admitted 
in  the  cafe;  becaufe  it  would  not  comport  at 
all  with  the  nature  and  ground  of  the  a6lion. 

We  are  therefore  of  opinion,  that  the  court 
of  common  pleas  erred,  in  giving  judgement 
for  the  plaintiff. 

Law,    Chief  Jujiice^  dijjenting. -I   agree 

in  opinion,  that  the  endorfement  on  the  bond 
will  not  fave  it  out  of  the  ftatute  of  limitation ; 
but  my  only  doubt  is,  whether  it  is  not  faved 
by  the  provifo.  It  appears  to  me,  the  obligee 
was  overfea,  according  to  the  true  meaning  and 
fpirit  of  the  ftatute.     The  common  intercourfe 

between 


Brattle, 


County  of  New-London,  Sept.  Term.  305 

between  this  country  and  Halifax,  muft  be  by     ""^"^8^1 
going  over  fea,  as  much   as  between  this  and     =^=^==:^ 
South-America  ;   and  to  conftrue  the  flatute  fo      Guflin 
ftricily,  that  none  are  within  the  provifo,  but     ^ffJJ^^ 
fuch    as   were   under  the  difability  when  the 
caufe  of  a8ion  firft  accrued,  may  do  manifeft 
injuftice:     For,    by  fuch   con{lru6lion,    if  the 
obligee  happens-  to  go  beyond  fea,  or  becomes 
a  lunatic  after  the  caufe  of  aftion  accrues,  he 
is  without  remedy  :     And  therefore,    the- mod 
reafonable    conftruBion    is,    that    the    ftatute 
means  to  extend  the  faving  to  thofe  difabilities 
which  happen  any  time  during  the  exiilence  of 
the  caufe  of  action,  and  is  not  confined  merely 
to 'the  time  of  its  originating, 

7udge  D'YERf  dijjenting.- — —I  conceive  the 
fl:atute  pleaded  in  this  cafe,  to  be  founded  on 
different  principles  and  reafons  from  the  fta- 
tute  of  21,  James  1.  or  the  Englifl)  flatute  of 
frauds  and  perjuries  ;  and  that  my  hrdkren 
have  in  fome  meafure  miftaklen  the  point,  in 
placing  their  reafons,  arguments,  and  authori-^ 
ties  fo  much  on  that  ground.  Thofe  (latutes 
are  founded  merely  on  the  uncertainty  of  ver- 
bal teftimony,  depending  on  the  memory  for  a 
number  of  years.  But  the  ftatute  of  limiita- 
tion,  pleaded  in  bar  of  this  aftion,  admits  a 
complete  evidence  of  the  contrail  or  obliga- 
tion;  and  is  therefore  founded  wholly  on  the 
prefumption  of  payment,  after  a  lapfe  of  feven  -^ 
teen  years  :  For  it  is  not  probable  that  a  per- 
fon  under  no  particular  difadvantage,  or  difa- 
bility, would  let  a  juft  debt  remain  fuch  a 
length  of  time  without  either  principal  or  inte- 
reft  being  paid.  This  ftatute  derived  itfelf 
from  the  common  law  of  England,  and  is  built 
upon  the  fame  reafons  and  principles,  and 
ought  to  be  fo  conftrued,  as  to  give  it  a  fimi- 
!ar  operation.  At  comm.on  law,  full  payment 
P  p  being 


3oS  County  of  New-London,   Sept.  Term. 

^  tS^     being  pleaded  to  a  bond,  it  might  be  given  in 
3=:^-=     evidence,   that  twenty  years  had  elapfed  from 
Guain      the  ti'ne  fixed  for  payment,  without  any   de- 
arain/}      mand  or  other  tranlaction  refpeding  it,  having 
Br-itu  e.     |-^j^^jj   place,    which,    on    the  ground  of  pre- 
fumption,    would    be   deemed   evidence   fuflB- 
CJent  to  prove  the  ilfue  ;  yet  any  tranfa8:ion  or 
circu  usance,  tending  to  leffen,  or  deftroy  fuch 
prefuvnption,    might   be   adn>itted  to  fave  the 
b.:>nd.     The  Englifh  Hatutes  rcfered  to,  were 
evidently  intended  to  remedy  evils  of  a  differ- 
ent nature  from  the  one   under  confideration, 
and  there  may  be  great  reafons  for  conft ruing 
them  itrittly ;  but  the  ftatute  here  pleaded,'be- 
ing  only  to  eltablifh  a  certain  prefumptive  evi- 
dence of  payment,   ought  to  receive  a  molt  li- 
beral and  favourable  conftruction,  fo  as,  in  no 
initance,  to   prevent  the   recovery  of  a  debt, 
cjiifelfed  by  the  parties  to  be  julL 

It  appears  from  the  pleadings,  that  the  obli- 
gee was  ablent,  refiding  at  Halifax,  iii  Nova- 
Scotia,  before  the  limitation  expired:  But  it  is 
faid;  that  Halifax  is  not  over  fea^  wifliin  the 
meaning  of  the  provifo ;  and  reference  is  had 
to  the  conllrudion  of  the  courts  in  England,  on 
ihQ  Jla tut e  21,  James  1,  where  it  is  held,  that 
Scotland  is  not  over  fea,  in  refped  to  England; 
but  they  are  both  on  the  fame  iiland,  contigu- 
ous to  each  other,  and  under  the  famejurifdic- 
ti on  :  And  it  hath  always  been  held,  that  Ire- 
land, though  under  the  fame  jurifdiftion,  di- 
vided only  by  a  channel,  is  within  the  provifo. 
See  Holt* s  Reports,  127,  128. — Halifax  is  miich 
m  )re  remote  from  us,  than  Ireland  from  Eng- 
land, is  under  a  foreign  jurifdiftion,  and  acccf- 
fible  only  by  fea; — it  comes,  therefore,  within 
the  provifo,  on  much  ftronger  ground,  than 
Ireland  with  refpc^  to  England. 

It 


County  of  New-London,  Sept.  Term.  3^7 

It  is  alfo  faid,  that  the  obligee  went  beyond  '" ^^^^ 
fea  after  caufe  of  adion  arofe  ;  and  therefore,  =^=^= 
not  within  the  faving  of  the  ftatute  ;  and  re-  Gvil'm 
ference  is  had  to  the  cafe  of  Cod  vs.  Hill,  i  ^f^^ 
Wilfon,  134  :  But  that  cafe  was,  of  an  executcr 
who  neglefted  to  commence  his  atlion  till  more 
than  fix  years  after  the  death  of  the  teftator  ;— 
therefore,  I  conceive  it  does  not  apply  :  And 
to  conftrue  the  ftatute,  as  hath  been  contend^ 
ed  for,  would  give  it  an  operation  productive 
of  great  injuftice.  Abfence  beyond  fea,  may 
be  occafioned  fuddenly,  unexpectedly,  and  even 
involuntarily,  while  the  obligee  has  good  right 
of  a6lion,  and  he  be  detained  beyond  the  limi- 
la^on  ;  but  if  this  conftruClion  of  the  ftatute  be 
adopted,  his  debt  would  be  loft  without  remedy. 
vStatutes  in  abridgement  of  right,  are  to  receive 
a  liberal  and  favourable  conftruftion,  while 
thofe  which  are  m.ade  in  fupprefiion  of  iome 
wrong,  are  to  be  conftrued  ftrictly.  The  fta-^ 
lute  under  confideration  is  of  the  former  def~ 
cription.  Its  objeB.  is  only  to  fubftantiate  and 
render  more  effeCtual  a  prefumptive  kind  of 
evidence  ;  and  there  is  the  ftrongeft  reafons  for 
adopting  a  favourable  conftruftion,  where  it 
operates  to  defeat  the  recovery  of  a  confeffed" 
ly  juft  debt,  without  any  pretence  of  payment. 

In  refpe6l  to  the  faving — *'  That  perfons  over 
"  fea,  or  legally  incapable  to  bring  their  aftions,- 
**  may  bring  them  v/ithin  four  years  after  their 
**  return,  or  becoming  legally  capable,  notwith-- 
**  ftanding  the  time  limited  is  expired.*' — It  is 
agreed,  that  the  time  of  limitation  had  not  run 
out  againft  the  obligee,  when  he  died  at  Hali- 
fax ; — it  was  a  time  of  war,  and  there  was  no 
dire8:  communication  between  the  tv/o  ccvan- 
tries  for  feveral  years  after.  The  preient  plain-, 
tiff  was  legally  incapable  to  bring  this  aCtion^ 
till  he  took  letters  of  adminiftration.  When 
Pp2  adminiftration 


3o8  County  of  New-London,  Sept.  Term. 

~TgT^     adminift ration  was  granted  to  him,  he  then  be- 
=====     came  legally  capable.     The  law   imputes   no 
Guftin      latchio  a  pcrfon  under  fuch  circumftances,;  .nor 
/".^^'p^     can  the  ftatute,   by   any  poiTible  conftrudion, 
^impute  negligence  to  a  perfon,   for  not  taking 
upon  him  the  burthen  of  adminiftration  ;  nar 
will  it  fubjetl  the  eftate  of  the  deceafed  to  lofs 
.      on  that  account.      Such  conftruclion  would  de- 
feat the.  purpofe   of  the.provifo.     The  cafe  of 
.Gary  et  ux  vs.  Stephens^  Salk.  421,    refered  to, 
is  againft  the  defendant  in  the  prefent  cafe,  as 
to  tliis  point,    that   no   latch  is  imputable  to  a 
rperfon  before  he  takes  out  letters  of  admini- 
flration.      In  that  cafe,   though   the  receipt  of 
*        .the  money  by  the  defendant,  on  which  the  du- 
ty or  pronfife  arofe,  was  more  than  fix  years 
before  aBion  brought  by  the  adminiftrator ;  yet 
.the  time  antecedent  to  his  being  adminiftrator, 
.and  after  the  death  of  the  inteftate,    was  not 
confidered  to  run  or  operate  againll  him.      No 
latches  are  imputable  to  an  iiijant  ov  Tifemt  co-- 
vert ;  an  infant  hath   a  guardian,    and  a  feme 
covert  a  hufband,    who  are  perfons  capable  to 
bring  an  a6iion  ;  yet  it  is  agreed,    the  ftatute 
doth  not  run  againft  tliem,   but  that  a  time  is 
allowed  to  bring  their  action,  after  they  arrive 
^       at  age,  or  become  difcovert.     The  reafon  ap^ 
]?lies  much  ftronger  in  cafe  of  a  perfon  deceafed, 
and  totally  incapable,  till  fome  perfon  %vill  ftep 
forward,   and  take. adminiftration,   which  only 
I  can  give  a  legal  ability  to  a6i:in  his  ftead.  The 

ftatute  here  pleaded,  allows  four  years  after  ad- 
miniftration granted;  or,  in  other,  words,  after 
legal  ability  to  bring  the  action  ;  and  this  afclion 
was  brought  witliin  that  time.  The  cafe  of  an 
adminiftrator  to  an  adminiftrator,  cited  from 
Strange,  907,  and  of  a  reverfioner.  Strange^ 
1257,  do  not  feem  to  apply.  In  the  firft  caie, 
they  both  make  but  one,  as  to  the  eftate  of  the 

deceafed ; 


Couf^TY  OF  New-London,  Sept.  Term.  go^ 

deceafed ;  and  even  in  that  cafe,  one  year  was  "^^^"^"^^ 
allowed,  by  force  of  reafon  and  juftice,  though  ==L=2i 
not  within  the  words  of  the  ftatute.  As  to  the  Guftia 
reverfioner,  the  eftate  is  but  one ;  and  the  di-  againji 
vers  limitations  are  all  but  one  complete  eftate  Brattko 
in  fee.  It  is  faid,  an  adminiftrator  comes  in 
place  of  the  inteftate — true  ; — but  he  is  a  (:rea« 
ture  of  the  law,  and  bears  no  relation  to  the  de-. 
ceafed,  or  his  eftate,  till  he  obtains  his  letters 
and  authority^  and  only  till  then  has  any  abili- 
ty to  a8:.  It  is  faid,  that  the  limitation  once 
begun,  runs  over  all  mefne  aQ;s,  as  bankruptcy, 
coverture,  infancy,  &c.  As  to  bankruptcy  and 
coverture,  it  may,  becaufe,  during  the  whole 
time,  there  are  perfons  legally  capable  to  bring 
the-action  j  and  it  may  be  as  to  infancy,  though 
a  convenient  time  is  allowed  after  the  difability 
is  removed ;  which  is  all  that  is  contended  for 
in  this  cafe  :  And  the  reafoning  applies  with 
greater  force  to  the  cafe  of  a  deceafed  perfon ; 
for  the  others  come  to  a  right,  or  ability,  of 
courfe,  by  the  death  of  a  huft^and,  or  the  in- 
creafe  of  the  infant's  years ;  but  for  admiral- 
ftration,  the  a8:  of  another  is  required — -a  legal 
appointment,  which  is  often  iongcontefted,  and 
may  be  very  uncertain  in  whom  the  right  is; 
and  rights  arife,  and  depend  upon  negleft  or 
refufal  of  thofe  who  have  the  prior  claim. 

As  to  the  Laft  point. — My  opinion  is  not 
founded  on  the  nev/  acknowledgement  of  thfe 
debt,  amounting  to  a  new  promife,  or  obliga- 
tion, as  in  the  cafes  on  the  ftatute  of  J'<2we5. — • 
Though  the  authorities  on  this  fubjecl  are  fome- 
what  divided;  fome  admitting  a  much  (lighter 
acknowledgement  than  others  to  revive  the  ac- 
tion ;  but  they  generally  admit  the  principle, 
that  the  acknowledgement  revives  the  adion  on 
the  firft  promife  ;  and  it  appears  to  be  fo,  from 
the  nature  of  things,  and  of  the  adion  brought: 

For;, 


310  County  or  Njcw^London,  Sept.  Term. 

_/ 

1787.  I'^^^i  if  the  adion  be  brought  on  the  renewed  pro-^ 
=^-  —  mife,  which  is  fuppoled  to  be  made  within  fix 
Guflin  years,  fuch  plea  would  be  to  nopurpofej  but 
Bmil^  if  fuch  new  promife,  or  acknowledgement,  was 
denied,  the  plea  would  be  fimply,  non  ajfiivipjity 
and  the  conteft  on  the  ftatute  of  limitations 
would  be  foreign  to  the  lubje6t.  The  cafe  cited^ 
from  Zc?.  Raym,  iioi,  was  governeH  by  this 
principle  :  It  was  brought  by  an  executor,  on  a 
promife  alledged  to  have  been  made  to  his  tef- 
tator ;  and  attempts  were  made  to  fupport  it  by 
evidence  of  a  new  promife  made  to  the  execu- 
tor; which  was  adjudged  not  to  fupport  the 
iflue  ;  but  that  it  would  have  been  otherwife, 
if  both  promifes  had  been  made  to  the  teftator, 
and  the  laft  within  the  fix  years. 

But  the  prefent  is  a  very  different  cafe,  and 
upon  a  ftatute  founded  on  very  different  prin- 
ciples, as  hath  been  obferved.     This  ftatute  is 
not  for  want  of  fufhcient  evidence  of  the  debt  j' 
but  on  a  lapfe  of  feventeen  years,    a  prefump- 
tion  arifcs,    that  it  hath  been  paid. — Any  evi- 
dence which  will  remove  that  prefumption,  re- 
moves the  ground  and  reafon  of  the  ftatute  : — 
For  prefumption  weighs  only,    till,   by  other 
evidence,  it  is  diminifhed  down  to  mere  pro- 
bability.— Though  fuch  an  operation  of  the 
ftatute  is  not  within  the  exprefs  terms,  yet  it  is 
found  to  be  within  the  reafon  ;  and  whatever 
is  within  the  reafon  of  the   ftatute,    is  within 
the  ftatute. Ratione  cejfanie,  cejjat  etiam  lex. 

Note. — This  judgeynent   was  afUrivards  re-' 
vtrfcd  in  the  fupr€mc  court  cf  errors. 


Waldo 


County  of  New-London,  Sept.  Term.  311. 

Waldo  againjl  Mumford. 

ACTION  of  debt  on  judgement,  inftitiited  ^"  ^-^'O"  of 
by  writ  oj  JOT cign  attaclvment. —  The  de-  judgemenr, 
ciaration  fet  forth  a  iudgement,   with  an  ^ver-  ^T/T^^«. 

r     •    r*    o  ■  1        1  1  attach'    enr, 

merit,  that  no  iatisraciion  had  been  made. — On  the  deci.-  a- 
demurrer,  this  declaration  was  adjudged  to  be  for"h"  ufa^*^ 

ill  ; For,  facis  aa  on 

By  the   Court.- A  judgement  creditor  m.Vp^^'c* 

may  have  an  action  of  debt  on  the  iudgeroent,  "^"^  ^'\-^^ 
ror  the  recovery  oi  his  due  out  of  the  efte6ts  tau.ed. 
of  an  abfconding  debtor,  in  the  hands  of  his  agent 
or  trujieey  in  cafe  fatisfadion  cannot  be  obtain- 
ed out  of  the  eft  ate  of  the  debtor ,  by  the  levy 
of  an  execution  ifllied  on-fuch  judgement :  But 
in  this  cafe,  there  being  no  allegation  in  the 
declaration  that  an  execution  hath  iffuedon  the 
judgement  declared  upon,  and  a  non  efl  inventus 
been  returned;  or  that  no  goods  or  perfonal 
eftate  of  the  debtor  could  be  found,  on  which 
an  execution  might  be  levied,  and  fatisfadion 
of  the  debt  obtained ;  on  that  ground  the  de-= 
ciaration  is  infufficient. 

JLaw,  Chief  Jvjlice,  and  Judge  Ellsworth, 
diffenting. The  defign  of  a  foreign  attach- 
ment, as  allowed  by  ftatute,  in  cafe  of  an  ab- 
fconding debtor,  is  to  fecure  his  effeas  in  the 
hands  of  his  agents,  &c.  which  are  of  fuch  a  na- 
ture, or  fo  concealed  as  not  to  be  come  at  bv 
ordinary  procefs  of  law.  Judgement  creditors 
are  entitled  to  take  benefit  of  it,  as  well  as 
others,  and  that  immediately  upon  the  debtor's 
abfconding.  They  are  not  obliged  to  wait  to 
afcertain  whether  an  execution  upon  the  hrft 
judgement  could  be  fatisfied  or  not.  The  fta-. 
tute  docs  not  require  it;  and  this  would  be  to 
poftpone  them  to  other  creditors,  and  until  it 

mieht 


312  County  or  New-London,  Sept,  Tesm. 

"^TStT     flight  be  too  late  to  fecure   any   thing  by  the 
^=^  •  -— =     procefs.      It  was  not  neceffary,  therefore^  for 
Wd.dj      the  phiintiff  to  aver  in  his  declaration,  tliat  he 
^fi     could  not  obtain  fatisfaftion  upon  the  firft  judg- 
ment;  and  if  he  had,  it  would  not  be  a  quef- 
tion  upon  the  trial,  whether  he  had  taken  the 
legal  fieps  to  afcertain  the  fa61,  or  whether  the 
avermeiu  was.  true,  or  not.      It  was  enough  for 
him,  in  his  declaration,  to  fet  forth  the  judge-^ 
ment  unfatished,  that  the  debtor  vs^as  abicond- 
ed,  and  that  his  agents,  &c.  on  whom  the  pro- 
cefs was  to  be  ferved,  had  his  efliecls  fo  conceal- 
ed in  their  hands  that  they  could  not  be  attach- 
ed— which  he  has  done. 

As  to  the  fuppofed  danger,  that  if  fuch  de- 
clarations are  allowed  of,  creditors  will  bring 
forward  a  fecond  procefs  wlien  they  might  as 
well  have  fatisfa6iion  upon  the  exifting  judge- 
ment, and  they  know  it  at  the  time,  we  appre- 
hend it  does  not  exift;  becaiife  this  would  be 
for  ihem  knowingly  to  refufe  the  fatisfaBion 
they  are  in  queft  of,  that  they  may  feek  it  fub- 
jed  to  a  hazard  and  delay,  and  an  additional 
expence  to  themfelves. 

As  to  the  pra6lice  or  refolutions  in  this  ftate, 
we  apprehend  there  has  been  none  that  will  ap- 
ply againft  this  declaration. And  a  debtor 

has  no  reafon  to  complain  of  a  fecond  procefs, 
who  has  not  fatisfied  the  judgement  rendered 
in  the  firft,  and  has  by  abfconding,  withdrawn 

a  main  pledge  for  the  payment  of  it. Vide 

Skrne  vs.  Spalding^  ante  177. 


Taylor 


County  of  New-London,  Sept«  Term,  313 

1787- 
Taylor  andOthers^  againjl  Geary  and  Others.  "^ 

ACTION  of  book-debt. The  plaintifFs  Acommim- 
were  merchants  of  London,   and  the  de-  ?uptcy  In  " 
fendants  defcribed  as  belonging  to  this  (late. —  E»^giand, 
Nil  debet;  pleaded — and  a  verditl  for  the  plain-  cure  the 

tiffs.  feas°inth[§ 

The  defendants  moved  in  arreft  of  judge-  coimtJyjbl^ 
ment,  on  this  ground—  That  the  debt  was  con-  ij^bytTth** 
traced   in  London,  under  the  firm  of  Geary,  atwehmenc 
Champion  and  Company ;  after  which,   agreea-  ^L^rs^a^^" 
biy  to  the  laws  of  England,   to  which  the  de-  \rcii  British 
fendants  were  then  fubje6t,   a  commifTion  of  Jat^"^"'" 
bankruptcy  was  duly  ifTued  againii  them  ;  and 
that  all  the  property  of  faid^rm  was  delivered 
into  the  hands  of  ajjignees^  for  the  benefit  of  the 
creditors  of  faid  jirm,  of  which  the  plaintifFs 
were  part  1  and  thereby  the  defendants  became 
difcharged  from   the  plaintifFs   demand.     All 
which  was  made  to  appear  on  trial;  and  there- 
fore, no  verdid  could  be  legally  found  againfl 
the  defendants,  or  judgement  rendered  thereon. 
Motion  adjudged  infufficient. 

By  the  whole  Court.- -The  commif- 

fion  of  bankruptcy  againft  the  defendants  in 
England,  does  not  fecure  their  effeQs  here; — - 
but  they  remain,  as  before,  transferable  by 
them,  and  open  to  the  attachment  of  their  cre- 
ditors, as  well  BritiJJi  as  American,  The  plain- 
tifFs, indeed,  can  have  but  one  fatisfa8ion  ; — » 
but 'till  they  obtain  that,  they  have  right  to 
purfue  their  remedy  againfl  the  eflefts  of  their 
bankrupt  debtors,  in  either  country,  or  both, 
at  the  fame  time.  But  it  doth  not  appear  that 
thefe  plaintifFs  have  proved  their  debt  under 
the  commifFion  :  If  they  have  not,  or  if  they 
are  willing  to  wave  the  benefit  oFit,  they  would 
in  England  be  at  liberty  to  proceed  at  law  againfl 
Q  q  the 


314  'CouNTV  OF  Ntw-LoNDON, -S«:i»t.Term. 

^^78^  the  perfons  of  the  debtors,  unlefs,  and  until  they 
==^=^  ftio^lcl  o^aift  jsi  c^tificate  of  their  having  con*. 
Taylor,  formed  to  tA^  a6i  of  the  5  Geo.  I.*  which  in 
^'^  this  cafe  can  never  be  ;  for  they  have  «ot  fur- 
G%7y^^  rendered  themfelves,  and  the  a8:  regards  them 
-  hot  as  privileged  againft  their  creditors,   but, 

#  At.it.  ^^o,  if  at  all,   as  Jeions,   for  non-conformity.     As 
"^'  their  perfons  would,  therefore,  be  liable  to  the 

plaintiffs  in  England,  nofwithftanding  the  com- 
miffion  of  bankruptcy,  both  their  perfons  and 
efFefts  are  here,  for  the  commiflion  fecures  nei- 
ther for  their  creditors. 

But,  whether  the  plaintiffs  had  right  to  a 
verdi6l  in  this  cafe,  or  to  fo  much  as  is  given, 
is  not  inquirable  of,  under  the  prefent  motion. 
The  iffue  was,  owe  nothing ; — the  jury  have 
found  that  the  defendants  do  owe.  Nothing 
appears  from  the  face  of  the  proceedings,  but 
that  the  verdid  is  well  founded,  and  no  mifbe- 
haviour  is  alledged  in  the  jury.  If  th^y  have 
iniftaken  their  evidence,  or  the  party  his  plead- 
ing, it  doth  not  vitiate  the  verdi6l ;— it  can  at 
mofl  but  be  a  ground  for  new  trial. 

Wherefore,  the  motion  in  arreft  was  ruled 
infufficient. 


'Randal  and  Other  Sy  Select-Men  of  the  Town 
of  Stonington,  againji  York  and  Others, 
Adminijirmkrs  o/"York,  dcceafid* 

THIS  was  an  a6lion  on  bond,  given  by  the 
deceafedy  conditioned — *' That  Benjamin 
"  Clarky  juii.  (who  was  appointed  colleUor  of 
"  public  taxes,  in  the  year  1783,  for  the  town 
"  of  Stonington)  fhould  faithfully  colleaall  the 
**  ftate-taxes  committed  to  him  for  that  pur- 

''  ppfe, 


County  OF  New-Lon'doNtj  Sept.  Te-rm^  3^15. 

*'  pofe,   and  pay  the  fame  to  the  treafurer  of    "^i^^ 

*^  Conneftket,   according   to   the   true   intent    ^=^-^=^ 

"  and  meaning  of  the   feveral   warrants  that    Randal, 

^*  fhould  be  given  him :    And   alfo,    colleQ:  all        ^^• 

*'  the  taxes  levied  by  faid  town  of  Stonington,  yofj^^^^ 

*^  in  the  year  17 S^^^  and  pay  the  fame  into  the 

*'  treafury  of  (aid  town,  according  to  the  direc- 

*'  don  of   his  warrants.     And   well   and  truly 

*'  execute   faid  office,    according   to  law,   and 

^'  fave   the  jekd'-men   and    inhabitants  of  faid 

**  town  of  Stonington,  from  all  legal  coil,  trou- 

"  ble,  and  damage,   that  might  or  fhould  arife 

"  on  account  of  any  mifconduft,   neglect,  or 

*^  deficiency  of  faid  Clark,  m  the  execution  of 

«^  faid  office." 

It  was  ftated  in  the  pleadings— That  the 
court  of  probate  had  limited  a  time  for  all 
claims  of  debt  againft  the  ellate  of  the  deceaf« 
ed,  to  be  exhibited  to  the  adminiftrators;  and 
that  before  the  expiration  of  that  term,  Clark 
bad  failed  to  fettle  with  the  treafurer,  agreea- 
bly  to  the  direQion  of  his  warrants,  though, 
there  had  been  no  proceedings  againll  the  y^= 
leBineny  or  inhabitants  of  the  town,  for  the  re- 
covery of  any  of  the  taxes  which  Clai^k  hdid 
failed  to  coiled  and  fettle,  till  after  the  expi- 
ration of  the  term  limited  by  the  court  of  pro- 
bate,  for  the  fettlement  of  York's  eftate. 

On  demurrer,  the  point  V7as,  whether  a  right 
of  action  had  accrued  upon  this  bond'  before 
the  expiration  of  the  time  limited  by  the  court 
of  probate,  for  the  creditors  of  the  deceafed  to 
exhibit  their  claims  to  the  defendants ;  - 
A.nd  it  was  held, 

By  the  wh^ole- Cot^Ki-;-'"  ^  Th^t  the  fai- 
lure of  the  collcffar  to  pay- thfcft^xes  to  the  tr'ea-^ 
furcTy  was  a  breach  of  the  coildition,  by  which 
a  right  of  aftion  accrued' on  the  bond  ;^-^and 
the  plaintiffs  having' neglecled^tbekhibit  their 
^  q  2  claim. 


3i6  County  of  New-London,  Sept.  Term. 

— i^tST  ^^^™*  according  to  the  order  of  the  court  of 
z=s~J=L  probate,   they  were,  by  law,  barred  and  fore- 
Randal,  clofed  of  any  recovery  on  faid  bond. 
&c. 

againft 
York,  &C. 


Kellogg  againjl  Williams. 

THIS  was  an  action  againft  the  fheriff  of 
Hartford  county,  for  the  non-feafance  of 
one  of  his  deputies,  in  not  levying  and  return- 
ing feveral  writs  of  execution,  in  favour  of  the 

plaintiif. The  cafe  was — That  the  late  Mr. 

Hofnier  having  large  demands  againft  Kellogg^ 
received  of  him,  to  collect  and  apply  on  ac- 
count of  faid  demands,  certain  promifTory 
notes,  from  which  arofe  three  executions^ 
v/hich  were  the  foundation  of  this  fuit.  The 
executions  were,  by  Mr.  HofmeVy  delivered  in- 
to the  hands  of  one  Sumner ^  then  a  deputy  of 
the  defendant :  Two  of  them  he  collefted,  and 
accounted  for  with  Mr.  Hofrner  in  his  life;  for 
the  other  he  gave  his  note  afterwards  to  Mr. 
}Iofmer''s  adminiftratrix,  who  endorfed  the  ex- 
ecution fatisfied.— — — Thefe  faQs  were  put  in 
ifTue,  and  a  verdi6l  found  for  the  defendant. 
The  plaintiff  moved  in  arreft,  on  the  ground, 
that  the  iffue  was  immaterial. 

The  queftion  upon  the  motion  was,  whether 
the  fettlement  of  the  laft  execution  with  the 
adminiftratrix  was  authorized,  and  bars  the 
plaintiff? — For  the  plaintiff,  it  was  contended. 
That  as  to  him  it  was  void  ;  That  Mr.  Hofmcr 
had  no  power  but  that  of  an  attorney,  which 
died  with  him,  and  could  not  veft  in  his  admi- 
niftratrix : But, 

By  the  Court. The  cafe  is— That  Mr. 

Hofmcr  had  the  executions,   not  merely  as  an 

a  ttorney, 


County  of  New-London,  Sept.  Term,  317 

attorney,  but  as  an  ajfignee,  to  difcount  the  avails     ^TStT 
upon   his   demand   againft  Kellogg;  and  had,     ===^= 
therefore,  a  property  or  intereft  in  the  execu-    Kellogg 
tions,  which  came  to  his  adminijlratrixy  and  va-  ^^^u^''-^^ 
li dated  the  fettlement  with  her,   as  to  all  per- 
fons  concerned. 

The  motion  v/as^  therefore,  ruled  infuffici- 
enti 


Clark 


3,i8  County  of  Litchfield,  Nov.  Term. 


Ciark 
againft 
Litchlie 
County, 


€ L A K K  againjt  the  County  of  hirctirithti. 

^     TpHIS  was  a  petition  agamCl  the   eouaty  ef 
X     Litchfield^    upon  the  ftatute   regulatii^g; 

goals;  by  which  it  ftands  enaded' **  Thar 

**  if  any  per  fori  or  perfans,  lawfully  committed 
"  to  any  of  the  goals  in  this  (late  (either  in  any 
"  civil  or  criminal  cafe)  ihall  break  fuch  goal, 
*'  and  make  his  or  their  efcape,  through,  or  by 
"  reafon  or  means  of  the  defed  or  iniufficien- 
"  cy  of  fuch  goal,  the  coil  and  charges  occa- 
"  fioned,  and  expended  thereby,  and  the  da- 
'''  mages  fuftained  by  the  perfon  or  perfons,  by 
^*  reafon  of  fuch  efcape  or  efcapes,  fhail  be 
"  paid  and  anfwered  out  of  the  county  treafu- 
**  ry  of  that  county  wherein  fuch  defe&ive  goal 
'*  is  ;  and  the  county  court  of  that  county,  up- 
"  on  application  to  them  made,  and  proof  there- 
'*  of,  fhall  order  payment  accordingly  ;  the  faid 
"  coft  and  damages  being  firft  juJtly  by  them 
**  afcertained  and  allowed:  That  in  cafe  any 
**  party  or  perfon  fhall  be  aggrieved,  by  the  de- 
*'  nial  or  determination  of  fuch  county  court, 
"  he  or  they  may  appeal  to  the  next  fupcrior 
"  court,  to  be  holden  in  that  county,  who  are 
"  empowered  to  hear,  adjuft,  and  determine  the 
"  fame,  and  order  payment,  as  aforefaid,  with 
"  fuch  cofts  arifing  on  the  appeal,  as  they  fhall 
**  judge  reafonable/* 

The  petition  was  in  common  form,  dating — 
That  one  David  Thorp,  a  prifoner,  in  execution 
for  debt,  at  the  fuit  of  the  petitioner,  made  his 
efcape,  through  the  infufficiency  of  the  goal. 

For  the  county,  it  was  anfwered — That  faid 
Thorp  made  his  efcape  from  faid  goal  by  the 
aid  and  affiftance  of  James  Hawleyy  IJaae  Booth, 
and  one  Andrus,  who  furnifhed  faid  Thorp  with 
a  number  of  crow-bars,  faws,  augers,  and  other 

implements. 


County  op  Litchfield,  Nov.  Term.  gig 

impiements,  by  means  whereof  he  broke  faid    "^"TgT^ 

goal,  and  not  through  the  infufficiency : *     =:=L= 

And  that  immediately  after  faid   Thorp's  ef-      Clark 
cape,  the  fheriff  of  the  county  made  freili  pur-     agmpjf 
fuit,  and  upon  fuch  purfuit  retook  faid  Thorpe   Lrtchfield 
and  confined  him  again  in  goal,  where  be  now 
is  holden  by  virtue  of  the  petitioner's  faid  exe*- 
cution,  and  for  his  benefit,  who  now  has  every 
legal  advantage,    not  only  againll   faid  Thorpe 
but   againft  the  perfons  who  affifted  kim   to 
make  his  efcape. 

The  petitioner  replied— That  he  never  had 
any  knowledge  that  faid  Hawley^  Booths  or  An» 
drus,  or  any  other  perfon,  ever  aided  or  affrft^ 
ed  faid  Thorp  in  making  his  efcape  from  faid 
goal ;  and  that  thofe  perfons  were,  at  the  time 
of  faid  Thorp's  efcape,  and  ever  lince  have  been, 
notorious  bankrupts  ; — and  that  faid  Thorp.\^2i^ 
not  retaken,  and  confined  again  in  goal,  until 
long  after  this  fuit  was  brought  forward  and 
pending  before  this  court ; — and  that  faid  ef- 
cape was  effeded  through  the  infufficiency  of 
faid  goaL 

To  this  there  was  a  demurrer,  and  joinder 
in  demurrer. 

By  Mr.  Reeve  and  Mr.  Tracy ^  counfel  for  the 
petitioner,  it  was  urged- — That  in  every  fup- 
pofable  cafe  of  an  efcape,  ihtfneriff  or  county 
are  liable,  unlefs  the  efcape  was  effeQed  hy  in- 
evitable accident^  the  public  enemy^  or  the  a.B  of 
God,  At  common  law,  the  fheriff  never  was 
excufed,  except  in  the  inflances  before  menti- 
oned: But  when  the  bufinefs  of  providing 
goals  was  transfered  from  the  flierifF(whofe  bu- 
finefs it  originally  was)  to  the  county,  it  be- 
came unreafonable  to  charge  the  fheriff  for  the 
infufficiency  of  the  goal,  which  he  had  not  power 
to  prevent.  It  was,  therefore,  provided  by  the 
ftatute  upon  which  this  fuit  is  founded— that  in 

cafe 


320  County  of  Litchfield,  Nov.  Term. 

^TgT"     eafe  of  an  efcape,   through  the  infufficiency  of 

=====     the  goal,   the  county  fhould  be  liable  ;  but  no 

Clark      further  alteration  of  the  common  law  was  made 

againft     ^^y  ^^  ftatute  ;    and  there  is  the  fame  liability 

County.    ^P°"  ^^  fheriff   and  county  now,    that  before 

the  ftatute  there  was  upOn  the   fheriff. To 

"fhow  when  the  fheriff  was  liable  at   common 
,-^aw,  was   cited — Coyne's  i^er^.  4th  part,  84. — \ 

It  was  further  urged,  on  the  part  of  the  pe- 
titioner— That  the  recaption  of  the  prifoner, 
after  an  a6lipn  bjought,  which  appeared  to  be 
the  cafe  from  the  pleadings,  cannot  avail  the 
county;  for  that  in  every  cafe  of  a  negligent 
efcape,  if  frefli  purfuit  is  made,  and  a  recap- 
tion effe6led  before  fuit,  the  flieriff  is  excufed; 
but  if  the  fuit  is  brought  before  recaption,  the 

fheriff  is  liable. Authorities   cited  to  this 

^oint — 3  Coke's  Rep.  52. — 2  Stra.  873. — ^Black, 
Com.  415  and  416. 

A  faving  claufe  in  the  ftatute,  provides— 
That  the  county  fhall  not  be  charged,  when- 
ever thofe  who  affifted  the  prifoner  to  make  his 
efcape  are  of  fufficient  ability  to  pay  the  debt. 
The  inference  from  this  is  conclufive — that  if 
they  are  not  of  fuflicient  ability,  the  county  is 
'chargeable.  It  appears  from  the  pleadings,  that 
-thofe  who  aflfifted  the  prifoner  to  efcape  were 
'bankrupts. 

In  regard  to  the  rule  of  damages — It  is  the 
whole  debt,   and  cannot  be  diminiftied,.— This 
•is  analogous  to  the  law  in  other  cafes  : — -Where 
an  officer  has  neglefted  his  duty,  in  the  levy  of 

an  execution,    nothing  is  abated  of  the  whole 
*  debt,  on  account  of  the  poverty  of  the  debtor. 

And  fo  are  the  books — 3  Black.  Com.  163. 
Mr.   Adams,  for  the   county,    contended — 

That  -goals  are  never  fo  built  in  this  country  as 
4*to   fecure  them  from  being  broken  by  perfons 

who 


County  of  Litchfield^  Nov.  Term.  321 

who  receive  externa]  affiilance.     Were  they     "^'T' 
ever  fo  llrong,  they  might  be  broken  on  the     ==  ^— -■= 
outfide;  and  for  this  there  is  no  default  in  the      Clark 
county.     It  could  not  be  the  intention  of  the    r'^^frA. 
legiflature   to  fubje8;  the  county,    where  they     County, 
are  not  to  blame. 

But  admitting  that  the  goal  was  infufficienti 
yet  it  is  concluiive  in  favour  of  the  county, 
that  they  had  the  prifoner  again  in  confine- 
meiit.  The  dodrine  of  the  fheriff's  liability, 
if  an  aftion  be  brought  before  recaption,  does 
not  apply  to  the  county.  The  idea  of  the 
county's  making  frefh  purfuit,  is  abfurd  ;  and 
from  the  nature  of  an  aggregate  corporation, 
fome  aQ:s  are  not  expelled  from  them  which  are 
required  of  an  individual ;  of  which  this  is  an 
inftance.  Therefore,  if  at  any  time  they  re- 
take the  prifoner,  it  is  fufficientj  for  the  pe- 
titioner now  has  the  fame  pledge  for  the 
payment  of  his  debt  as  he  had  before  the 
efcape. 

Another  important  point  in  the  cafe,  is— 
That  the  ftatute  has  exprefsly  provided  ano- 
ther remedy  for  the  petitioner;  and  until  he 
has  tried  and  failed  in  that,  he  can  have  no 
right  of  recovery  againft  the  county.  It  be- 
ing alledged,  that  the  perfons  who  alTifted  the 
prifoner  to  make  the  efcape,  were  not  of  fuffi- 
cient  ability  to  refpond  the  petitioner's  demand, 
is  immaterial;  for  their  ability  can  only  be 
known  by  the  officer's  return  of  execution 
againft  them.  Thofe  fteps  having  been  firft 
taken,  the  petitioner  might  then  apply  to  the 
county,  but  not  before. 

In  refpe8:  to  the  rule  of  damages,  in  cafe  the 
points  of  defence  fnould  be  adjudged  infuffici- 
ent : — The  peculiar  expreffions  of  the  ftatute — 
"  his  damages  being  jujily  afccrtainedy''' — plainly 
difcover  the  intention  of  the  legiflature  to  have 
R  r  been, 


322  County  oy  Litchfield,  Nov.  Term", 

"^{T^^     been,   that  the  real  damages  luftained,   under 
=====     all  the  circumftances,  fhall  be  recovered  ;  not 
Clark      that  the  court  muft  prefume,  in  contradiftion 
T  •^^h^fi'^id   '^  every  evidence,   that  the  whole  demand  for 
County,     ^^^i^^  the  prifoner  was  confined  is  the  criterion 
of  damages.     Such  a  conftruBion  of  the  ftatute 
would  tempt  creditors  to  combine  with  their 
poor  debtors,  and  help   them  to  efcape   from 
goal,  in  order  for  a  recovery  againft  the  coun- 
ty. 

In  the  prefent  cafe,  from  the  petitioner's  own 
ftating,  it  appears,  that  the  prifoner  was  a  bank- 
rupt, and  had  taken  the  poor  prifoner's  oath  ; 
therefore,  the  profpeft  of  his  recovering  any 
thing  from  the  prifoner  was  very  remote  ;  and 
of  confequence,  the  damages  ought  to  be  very 
fmall. 

But  judgement  was  for  the  petitioner.  And, 
By  theCou rt. — (Judge  Dyer  dijf'enting) 
This  is  a  petition  againft  the  county,  upon  the 
llatute,  claiming  damages  for  the  efcape  of  a 
prifoner,  through  infufficiency  of  the  goal,  who 
was  in  execution  for  a  debt  due  the  petitioner. 
The  ftatute  provides,  inter  alia — **  That  if  any 
**  perfon,  lawfully  committed,  fhall  break  goal, 
*'  and  make  his  efcape,  by  reafon  or  means  of 
"  the  infufficiency  of  the  goal,  the  damages  fuf- 
^*  tained  by  reafon  of  fuch  efcape,  fhall  be  paid 
**  out  of  the  county  treafury.*' — With  a  faving 
in  the  following  words,  viz. — "  That  nothing 
**  in  this  a6l  fhall  be  conftrued  to  prejudice,  or 
**  hinder  any  perfon  or  perfons  from  recovering 
**  any  oxpence,  coft,  or  damage  of  the  perfon 
^'  or  perfons,  or  out  of  the  eftate  of  fuch  per- 
"  fon  or  perfons,  who  fhall  break,  or  be  aiding 
**  or  affifting  in  breaking  the  goal,  or  who  fliall 
*'  efcape,  or  be  aiding  thereto,  according  to 
**  law  ;  and  when  fuch  remedy  for  fatisfa6lion 
■'  may  be  had,  the  county  fliall  not  be  charged 

**  with. 


Litchfield 
County. 


County  of  Litchfield,  Nov.  Term.  323 

"with,  nor  be  ordered  to  pay  the  faid  expence,     "^Tg? 
"  coft,  or  damage.'*  ==4:=^ 

The  defence  is  : —  Glark 

1.  That  the  efcape  was  efFeBed  by  the  aid     againji 
of  perfons  without  the  goal,  viz.  James  Hawley, 
and  others  named,  who  furnifhed  the  prifoner 
with  implements  for  that  piirpofe. 

This  cannot  avaiL—Public  juftice,  and  the 

peace  of  fociety  are  concerned,   that  prifoners 

fhouid  be  fecurely  kept;  and  that  for  every  ef» 

cape,  not  happening  by  hre,  public  enemies,  or 

the  providence  of  God,  the  builder,  or  keeper, 

of  the  goal  fhall  be  refponfibie.     In  England, 

the  refponfibility  is  in  the   fame  perfon,  who 

both  provides  and  keeps  the  goal.     Here,  by 

the  ftatute,  it  is  divided,  but  not  leiTened  ;  the 

county,  who  builds  and  repairs,   is  refponfibie 

for  the  fufficiencyof  the  goal,  and  the  fheriff 

for  the  cuftody  of  it ;  and  one   or  the  other. 

muft  anfwer   for   every  efcape,   except  in  the 

cafes  abovementioned.      It  is  no  excufe  for  the 

county,  that  the  prifoner  broke  out  by  the  help 

of  implements  handed  in  at  the  window.      It  is 

their  duty  to  provide  a  fitfficient  goal,    which 

they  do  not,  if  prifoners  can  break  out  of  it, 

with  or  without  implements.      If  the  goal  is  left 

acceffible  to  perfons  without,  and  is  of  a  con- 

ftru8:ion  and  materials,   that  by  the  fecret  ufe 

of  implements  it  can  be  broken,   it  is  not  that 

place  of  fecurity  which  the  law  intends.      It  is 

the  (heriff's  duty  to  defend  the  goal  againft  open 

or  riotous  attempts;  but  it  clearly  devolves  on 

the  county  fo  to  build  and  fecure  it,  that  it  fhall 

not  be  liable  to  be  broken  fecretly,  and  without 

the  knowledge  of  a  vigilant  and  faithful  keeper^ 

which,  in  this  cafe,  it  appears  they  have  not. 

A  further  ground  of  defence  ftated,.  is — That 
the  petitioner  hath  a  remedy  againft  the  perfons 
who  aided  the  efcape  : — 

R  r  2  If 


124  County  of  Litchfield,  Nov.  Term. 

^TStT         If  he  had  had  knowledge  of  them,   and  they 
s=^==     had  been  of  apparent  ability,  it  would  have  been 
Cark      hjs  duty,   by  the  flatute,  to  have  firft  fought  his 
againft     remedy  agaiuft  them  :  But  it  appears  from  the 
Cou'^i!''^'^   pleadings,    that  he  neither  had  any  knowledge 
of  them  at  the  time  of  commencing  this  pro- 
cefs,  nor   were   they   of  any  ability  ;  nor  is  it 
fuggefted  that  the  prifoner  himfelf   had  eiiate, 
within  the  knowledge  and=  reach  of  the  petiti- 
oner,  out  of  which  he  might  have  indemnified 
himfelf  for  the  efcape.     lie  had  right,  there- 
fore, to  his  remedy   immediately  againft  the 
county. 

A  third  ground  of  defence,  is — That  on  frefh 
purfuit,  by  the  fheriff,  the  prifoner  was  retaken, 
and  is  ftill  in  goal  :— - 

It  appears  from  the  pleadings,  that  be  was 
out  fome  months,  and  not  recommitted  till  af- 
ter this  fuir  was  brought.— How  far,  however, 
a  prifoner  who  goes  at  large  three  or  fix  months 
can  be  faid  to  be  retaken  on  frefh  purfuit,  with- 
^  in  the  reafon  or  letter  of  the  rule,    may  not  be 

material  here;  for  the  flatute  hath  no  laving 
for  any  recaption.  If  there  has  been  an  efcape, 
the  county  is  holden.  The  flatute  has  fome 
favings  for  the  county,  which  the  common  law 
has  not ;  in  others,  it  may  fall  fhort. 

The  common  law  rule,  however,  would  not 
help  the  defendants  in  this  cafe  :  It  goes  only 
to  recaptions  before  fuit  brought,  Stran.  873, 
and  upon  plain  reafon  ;  becaufe,  as  the  goalcr 
holds  the  body  as  a  pledge  for  the  debt,  and  to 
enforce  payment,  if  heiets  it  go,  the  creditor 
is  not  obliged  to  wait  to  fee  whether  he  will  re- 
take it  again,  but  has  his  right  of  a6lion  againfl 
the  goaler  immediately ;  and  having  commenc- 
ed it,  and  made  his  eleftion,  he  is  not  to  be 
defeated  by  matter  ex  pojl  faMo.  Here  fuit  was 
brought  before  the  recaption.  Neither  com- 
mon 


County  of  Litchfield,  Nov.  Term.  325 

mon  law,   or  the  ftatute,  will,  therefore,   fup-     ^^> — 
port  this  branch  of  the  defence.  ==4?^ 

As  to  the  equitable  ground  infilled  on,  that  Clark 
the  debtor  having  taken  the  poor  prifoner's  agahfi 
oath,  his  detention  in  goal  would  have  been  no  Litchfield 
benefit  to  the  creditor  :— It  is  againft  a  ftatute  °""^7' 
provifion,  which  enables  the  creditor,  notwith- 
ftanding  the  oath,  to  detain  the  prifoner  at  his' 
own  expence,  upon  the  ground  that  the  deten- 
tion ftill  may,  as  it  fometimes  in  facl  doth,  in-- 
duce  a  difclofure  of  eftate,  and  fatisfaQion  of 
the  debt.  Such  farther  detention  in  goal  is  a 
mean  the  law  has  prefcribed  and  given  the  cre- 
ditor for  the  recovery  of  his  debt ;  and  it  there- 
fore fubje61s  thofe,  who  through  negle6t  of 
their  duty,  do  in  any  meafure  deprive  him.  of 
it,  to  the  payment  of  the  debt.  Sheriffs  ne- 
glecting to  commit  upon  executions,  are  never 
excufed,  or  abated  in  damages,  becaufe  the 
debtor  is  poor.  In  England,  the  comnion  ac- 
tion for  efcape  of  one  in  execution,  is^  debt,  in 
which,  of  courfe,  without  regard  to  the  ability 
of  the  prifoner,  the  v^^hole  debt  for  w^hich  he 
was  in  execution  is  recovered.  Execution  is 
the  end  of  the  law.  Laxnefs  and  infecurity 
here,  render  futile  law  proceedings,  and  the 
law  itfelf. 

We  are,  therefore,  of  opinion,  that  the  re- 
plication of  the  petitioner  in  this  cafe,  is-fulEci^ 
ent. 

Note. — Thh  decijion  was  after 'mards  rcvcrfed 
in  thefupreme  court  of  errors. 


K  I  S  S  A  AT 


326 


County  of  Litchfield,  Nov.  Term. 


Kiffam, 

againji 
Burrall. 


Kiss  AM  and  Hazard,  Executors  of  Hazard, 
dicceafedy  aga  infi  Burrall. 

ERROR  from  the  coiirt  of  coinamoia  picas.— 
The  plaintiffs  brought  their  aEion  of  debt, 
counting  upon  a  bond  for  1950/.  current  money 
of  New- York,  given  by  the  defendant  to  the 
deceafed,  bearing  d-ate  the  10th  da)y  of  June, 
A.  D.  1761. 

lifue  was  joined,  on  a  plea  of  full  paiyment ; 
and  the  defendant,  in  fuppout  of  the  iffue,.  ex- 
hibited evidence  of  fundry  payments,  to  the 
amount  of  2605/.  11s.  %d.  made  between'thc 
9th  day  of  December,  1761,  and  December, 
1783  :  Alfo,  ten  accounts,,  from  fome  of  the 
principal  merchants  in  New^York,  and  elfe- 
where,  in  which  the  intereft  was.  compute  dan  d 
fettled  in  the  following  manner,viz, — Firfli  call- 
ing the  intereft  on  the  bond  or  account  to  the 
time  of  fettlement,  add  the  principal  and  inte- 
reft together — then  computing  the  intereft  on 
the  feveral  payments,  from  the  time  they  were 
made  to  the  time  of  fettlement,  and  deduft  the 
aggregate  of  payments  and  intereft  from  the  fum 

of  debt  and  intereft. The  merchants  from 

whom  thefe  accounts  came,  teftified  that  the 
intereft  was  computed  agreeably  to  the  cuftom 
of  merchants  in  New- York. — The  defendant 
alfo  produced  the  teftimony  of  fundry  reputa- 
ble merchants  in  the  country,  to  the  fame  ef- 
fe6l,  whofe  trade  had  been  with  the  merchants 
in  New- York  ;  and  further,  that  they  knew  no 
difference  in  computing  intereft  on  bonds  and 
accounts. The  defendant  produced  an  ac- 
count fettled  in  the  year  1773,  with  one  of  the 
plaintiffs,  in  which  intereft  was  computed  in  the 
manner  abovementioned  :— Alfo  the  teftimony 
oi  Jonathan  Burrall^  that  previous  to  the  late 

war. 


787. 


Burral 


County  of  Litchfield,  Nov.  Term.  327 

war,  he  faw  Hazard  feveral  times  with  the  de- 
fendant ;  and  in  a  converfation  heard  him  tell 
the  defendant,  that  he  had  made  feveral  com-  Kiffam, 
putations  on  the  bond  nov/  in  fuit,  but  none  of  ^^' 
them  fuited  him  :  That  he  found  little  or  no-  ,f^'^'':'if 
thing  due,  and  that  the  defendant  need  not 
give  himfelf  any  trouble  about  it :  That  the  de- 
fendant then  propofed  to  fettle  the  bond,  ac- 
cording to  the  rule  of  computation  pra61iced 
by  the  fuperior  court ;  and  that  Hazard  agreed 
to  the  propofal,  acknowledging  it  to  be  fair  :-— 
That  the  defendant  afterwards  applied  to  the 
clerk  of  the  fuperior  court  for  the  rule  by  which 
he  made  a  computation,  and  found  there  was 
about  18/.  York  money,  due,  and  he  afterwards 
paid  it :— That  about  eight  years  after  this  con» 
verfation  and  agreement,  Mr.  Hazard  prefent- 
ed  the  defendant  a  ftatement  of  the  bond,  by 
which  a  balance  of  about  1200/.  appeared  to 
be  due.  The  defendant  objecled  ;  but  Mr. 
Hazard  replied,-  that  the  other  heirs  infifted 
that  the  intereft  ihould  be  computed  in  that 
manner. 

The  defendant  further  exhibited  a  certificate 
from  George  Wyllys,  Efq.  clerk  of  the  court  of 
common  pleas,  in  the  county  of  Hartford,  that 
the  general  mode  of  calling  intereft  on  bonds" 
or  notes,  whereon  judgement  has  been  render- 
ed by  the  court  of  common  pleas,  in  the  coun- 
ty of  Hartford,  for  thirty  years  laft  paft,  had 
been,  to  compute  the  intereft  of  the  principal 
fum  to  the  firft  day  of  the  fitting  of  the  court 
at  which  the  action  was  commenced  ;  and  when 
payments  had  been  made  at  different  periods 
of  time,  to  caft  the  intereft  on  the  (everal  pay- 
ments, from  the  time  they  were  made  to  the 
firft  day  of  the  court ;  add  the  payn^ents,  with 
their  intereft,  and  fubtraft  the  whole  from  the 

principal  fum  and  its  intereft. Alfo,  a  cer-- 

'  tificate 


3 


28  -County  of  Litchfield,  Nov.  Term. 

"^ToT  tificate  from  George  Pitkiyiy    Efq.    clerk  of  the 

— =Li:  fuperior  court,  that  from  the  year  1757,    until 

KilTam,  about  the  year  1774  or  1775,  the  rule  of  com- 

&c.  puting  intercft  was,  to  call  the  intereft  from  the 

payment,  place  it  in  a  fide  column,  then  fubtraft 
the  payment  from  tlie  principal,  and  call  the 
intereft  on  the  remaining  principal  to  the  next 
payment,  and  fo  on  to  the  time  of  judgement; 
then  add  the  intereft  in  the  fide  column  to  what 


Burrall, 


remauis. 


E  X  A  M  F  L  E. 


Bond    for    f^.  150,    dated    iQ:   June,"^        <S/V^    Column'. 
1780,       -  -         £-^S^     ^     ^  I    2  years  interell, 

1782,  June  lil,  payment,    30     o     o  !  j^-i^     o 

—   r  Ditto,     14     6 


o 


^.120 


J  784,  June  ift,  payment,    30     o     o J  ^^.32  16     o 

1785,  June  id,  judge- 
ment rendered,     -      £-9^     o     o 

Intereft  from  June,  1784, 

to  June,  17S5,  -580 

Intereit  from  fide  column,    32    16     o 

^.128     4     o 

That  from  the  year  1774  or  1775,  the  court 
ordered  the  intereft  to  be  computed  from  ^he 
date  of  the  note  or  bond,  to  the  time  of  the^ 
judgement ;  and  the  intereft  upon  the  pay- 
ments, from  the  time  they  were  made,  in  like 
manner,  and  rendered  judgement  for  the  ba- 
lance.— So  was  the  practice  till  the  feftion  of 
court  in  New-London  county,  March  term, 
1784,  when  the  court  eftabliflied  a  different 
rule,  and  ordered  the  fam.e  to  be  entered  on 
record.^ (See page  4g.) 

The  plaintiffs  demurred  to  this  evidence — 
and  the  court:  of  common  pleas  gave  judgement 
for  the  defendant. — The  only  queftion  made 

in 


ance.  49, 


County  of  Litchfield,  Nov.  Term,  329 

in  the  caufe,  refpeded  the  mode  of  computing     "^Tgl^ 
intereft  ;  and  the  exception  taken  to  the  judge-     ==L_Z^ 
ment  of  the  court  of  common  pleas,  was,   that    Ki/Tam, 
the  decifion  direftly  contradi8:ed  the  rule  efta-       ^- 
blifhed  by  the  fuperior  court,  in  the  year  1784,     gf^"^ 
for  computing  ihtereft  on  bonds  where  pay- 
ments have  been  made. 

The  caufe  was  argued  in  this  court,  by  Mr. 
Tracy  and  Mr.  Reeve^  for  the  plaintiffs  in  er- 
ror ;  and  by  Mr.  Sti^ong  and  Mr.  Adams,  for 
the  defendant. 

Mr.  Tracy. — The  ground  of  controverfy  in 
this  cafe,  is — whether  the  rule  for  computing 
intereft,  adopted  by  the  fuperior  court  in  1784,*  *  see  the 
or  thofe  in  ufe  before  that  time,  fhaii  be  the  ^:^^^'.^^-5*^ 
bafis  of  this  adjudication  ;  for  if  the  exifting 
rule  of  the  fuperior  court  be  adopted,  a  large 
fum  is  due  to  the  plaintiffs  ;  but  computing  by 
the  previous  rules,  a  considerable  fum  more 
than  the  debt  has  been  paid  by  the  defendant. 

This  being  the  matter  in  difpute,  it  occurs 
to  the  mind,  with  force,  that  the  rule  or  m.ode 
of  computing  intereft,  which  will  give  the  plain- 
tiffs the  lawful  intereft,  ought  to  be  adopted. — 
Upon  the  ftrifteft  attention  to  the  rule  adopt- 
ed in  1784,  it  will  be  found,  that  all  calcula- 
tions made  upon  that  rule  will  produce  the  law- 
ful intereft  fmiply,  and  never  exceed  that,  by 
accumulated  or  compound  intereft  :  But  by  a 
computation  on  any  one  of  the  principles  ur- 
ged by  the  defendant,  the  bond  in  fuit  will  not 
be  produBive  of  lawful  intereft,  and  many  years 
of  its  exiftence,  not  three  per  cent, — Thefe  dif- 
ferent modes  of  computing  intereft,  then,  ought 
to  be  conftdcred  as  fo  many  attempts  to  come 
at  a  juft  mode  of  giving  a  holder  of  a  bond  on 
intereft  his  due;  and  if  at  one  period  or  ano- 
ther, the  attempt  failed  of  the  wiftied  for  fuc- 
ceis,  it  could  form  no  rule,  until  a  juft  mode 
S  s  wa? 


330  Gouj^TTY  OF  Litchfield,  Nov.  Term. 

iTgT"  Was  bit  upon,  and  then  an  adoption  of  that  rule 
=====  could  not  be  called,  with  propriety,  a  new  rule; 
Kifiam,  beeaufe,it  was  always  the  rule  meant  to  be  prac- 
^^;  ticed,  and  thofe  modes  of  the  fuperior  court, 
Burrall.  ^^^^  called  the  antient  rules  of  cafting  intereft, 
had  no  more  force  ever,  and  certainly  cannot 
now  be  fuppofed  to  have  had  any  more  force, 
than  any  miftaken  idea  v;hatever ;  and  as  well 
might  the  idea,  that  it  is  contrary  to  the  word 
of  God  to  allow  any  intereft  to  be  taken  on  the 
loan  of  money,  be  offered  as  a  rule,  wholly  to 
fuperccde  the  ftatute,  which  cxprefsly  allows 
intereft  to  be  taken,  as  any  other  mode  or  rule 
of  computing  intereft  j  which  does  not,  in  fad, 
give  the  plaintiff  his  legal  ratio  of  intereft. — 
The  ftatute  allowing  a  certain  rate  of  intereft 
to  be  received  by  a  creditor  from  a  dcbtor,\ 
had  all  its  binding  force  in  operation  upon  the" 
defendant,  and  no  evafion  can  prevent  the  be- 
nefits of  that  ftatute  applying  to  the  plaintiffs  in 
this  cafe.—- — -Why  were  the  adjudications  of 
this  honorable  court  uniformly  againft  fubftan- 
tiating  tenders  of  continental  money  for  the  pay- 
ment of  hard  money  contrafts  ? — -Did  not  all 
men  generally  believe,  whenthofc  tenders  were 
made,  that  continental  money  would  be  made 
good,  as  it  was  then  termed  P — The  manifeft 
^^afon  was,  that  the  idea  of  paying  debts  by 
thofe  tenders  was  unjuft,  and  a  miftake  ;  be- 
caufe,  in  faB,  it  did  not  make  payment,  and  ^ki 
not  fulfil  the  contra6l ;  yet  the  party  tendering 
it  might  be  honeft,  and  might  verily  believe  the 
money  would  be  mado'good,  which  would  have 
really,  had  it  happened,  difcharged  the  promife 
and  contract  he  had  made. — In  this  cafe,  the 
defendant  might  fuppofe  he  had  fulfilled  his 
contraft;  but  he  calculated  upon  miftaken 
ground  ;  and  when  a  rule  of  calculation  is  di(- 
covered,  which  will  clearly  fulfil   his  contraft, 

and 


County  of  Litchfield,  Nov.  Term.  331 

and  his  miftake  is  dete8:ed,    it  is  immoral  to     ^Tg^ 
pretend  he  ought  not  to  fulfil  his  promife,   be-     =^^== 
caufe  his  creditor  was  miftaken  too — and  fo     Kiffam, 
v/as  the  fuperior  court  for  a  number  of  years.  ^'^• 

The  demurrer  to  the  evidence  in  this  cafe,  ^f^'/all. 
admits  no  more  than  this — Many  perfons  have 
miftookthe  rightway  of  computing  intereft;  but 
can  a  miftake n  payment,  or  receipt  of  money, 
cancel  an  obligation  ?  If  not,  can  a  miftake  in 
cafting  intereft  cancel  a  written  engagement  in 
fuch  manner  as  that  an  cxprefs  ftatute  fhall 
lofe  its  operation  ? 

Mr.  Strong,  for  the  defendant.— -The  only 
queftion  is,  whether,  upon  the  face  of  the  re- 
cord there  appears  to  have  been  full  payment 
made.^ — The  determination  of  this  queftion  will 
depend  upon  the  application  of  the  payments, 
whether  to  the  principal  or  intereft  of  the  bond. 
No  exprefs  application  was  made  by  the  parties 
at  the  time  of  payment;  but  it  remains  now  to 
be  done,  agreeably  to  the  rules  and  ufages  by 
which  fimilar  tranfaQions  v/ere  then  governed. 
There  is  no  prefumption  that  the  parties  con- 
templated any  other  rule  or  ufage  than  fuch 
as  at  that  time  exifted. — The  contraR  was  made, 
and  every  tranfa6tion  confequent  upon  it,  tcK^k 
place  antecedent  to  the  rule  eftabliihed  by  tliiT 
court  in  the  year  1784;  that  rule,  therefor^l 
cannot  affe6t  the  cafe.  So  are  the  principle<r 
laid  down  by  this  court,  in  the  cafe  of  Hinfdak 
vs.  Hinfdale,  appeal  from  probate.  It  v/as  there 
adjudged,  that  the  cftate  fhould  defcend  accord- 
ing as  the  law  ftood  when  the  defcent  was  caft.  " 

The  lawful  rate  of  intereft  in  this  ft  ate,  is  fix: 
per  cent,  why  then  do  the  courts  allow  feven 
per  cent,  upon  contraBs  made  in  the  ftate  of 
New-York? — It  is  becaufe  that  is  the  lawful 
rate  of  intereft  there,  and  the  rate  of  intereft 
which  the  contracting  parties  are  prefumed  to 
S  s  2  have 


332-  County  of  Litchfield,  Nov.  Term. 

"^"t?     ^^^^^  ^^^  in  contemplation,   at  the  time  of  the 
=====     contrad,  and  their  intention  is  to  be  purfued. — 
Kiffam,     The  fame   prefumption  arifes,    refpefting  the 
^^;        mode  of  computing  the  intereft;  and  the  court 
Iw'aiJ.     ^^^^  regard  the  one  as  well  as  the  other. — It  is 
clear,  from  the  evidence  ftated,  that  at  the  time 
the  bond  was  given,  and  the  payments  made,  the 
praftice,  both  in  the  ftatc  of  New- York  and  in 
this  ftate,  was,  to  compute  intereft  in  the  mode 
contended  for  by  the  defendant : — In  the  cafe 
of   Phenix  vs.    Prindle  (ante  207J   it   was  ad- 
judged, that  the  contract  fhould  be  governed 
by  the  cuftom  of  the  merchants  where  it  was 
made; — fo  intereft  was  recovered  contrary  to 
the  laws  of  this  ftate,  in  an  action  of  book-debt, 
contraded  in  New-York,   and  on  the  ground, 
that  the  prefumption  was,  the  parties  intended- 
it  fhould  be  paid. 

'  Mr.  AdamSy  on  the  fame  fide. — It  will  be 
.  agreed,  that  by  either  of  the  rules  for  comput- 
ing intereft,  in  praftice  by  this  court,  antece- 
dent to  the  year  1784,  the  bond  is  fully  paid. 
Whether  much  or  little  be  over  paid,  is  out  of 
the  cafe.  That  contrads  are  to  be  governed 
by  the  laws  in  exiftence  at  the  time  and  place 
where  they  are  made,  will  not  be  denied: — 
The  queftion  then  is — whether  a  rule  of  the 
llperior  court  be  a  law ;  for  when  a  law  is  re- 
pealed, or  altered,  it  fuppofes  the  old  law  not 
Ito  be  fo  good  as  the  new  law. — Here  are  two 
rules: — The  firft  has  exifted  time  immemorial, 
and  is  fupported  by  a  long  courfe  of  adjudica- 
tions ; — the  latter  is  an  exprefs  and  pofitive  rule,, 
adopted  upon  full  deliberation. — They  are  of 
equal  authority,  and  are  bothto  be  regarded  as 
law.  The  common  law  is  fettled  and  known 
by  the  adjudications  of  the  high  courts  of  the 

ftate. 7 This  principle  being  eftablifhed,    it 

will  follow,  that  the  contra6t,   in  this  cafe,  and 

the 


County  of  Litchfield,  Nov.  Term.  333 

the  tranra6lions  confequent  upon  it,  muft  be  "jTgT 
governed  by  the  rules  and  praftices  of  the  fupe-  =^=i^ 
rior  court,  antecedent  to  the  year  1784 ;  which  Kiffam, 
rules  are  the  fame  as  was  pradiced  by  the  mer—  -^^• 
chants  where  the  contra6l  was  made.  The  par-  -D^r^f 
lies  could  have  no  other  law  or  rule  in  con- 
templation;  and  to  fubje8:  them  to  a  fubfe- 
quent  rule,  of  a  different  nature,  would  make 
their  contraQ:  different  from  the  original  inten- 
tion of  the  contracting  parties*.  By  the  law,  as 
it  then  flood,  the  contra6l  was  fully  performed; 
but  by  an  ex  pojl  faBo  law,  it  is  again  opened,, 
a-nd  left  unfulhlled.- — Whether  it  be  true,  that 
the  laft  rule  of  the  court  ought  to  have  been 
fooner  adopted  or  not,  is  immaterial  to  this 
cafe  ;  for  the  parties  were  to  govern  themfeives 
by  the  law  as  it  then  flood.  Could  they  have 
knov/n,  that  they  fliould  be  fubjeQ  to  this  rule, 
their  condu6l  would,  undoubtedly,  have  been 
different.— The  cafe  of  FhenixYs.  Frindle^  will 
apply  with  force  :— There  the  court  faid,  the 
contra6l  muft  be  fubjeQ:  to  the  controul  of  the 
laws  under  which  it  was  made,  although  they, 
were  different  from  the  law  of  this  ftate  ;  be- 
caufe,  the  intention  and  underftanding  of  the 
parties  is  fuppofed  to  have  reference  to  that, 
and  no  other. 

It  has  been  urged,  on  the  other  fide— tl;gt 
the  pra6lice  of  the  merchants  and  court,  ftated 
in  the  evidence,  is  abfurd  ;  for  that  payment  of 
a  fum,  beyond  the  fum  of  the  principal,  will, 
by  a  greater  increafe  of  intereft,  operate  to  de=- 
llroy  the  whole  debt,  and  finally  bring  the  cre- 
ditor in  debt :  But  this  reafoning  is  not  juft  j 
for  the  accumulation  of  intereft  upon  the  pay- 
ments can  gD  no  further,  than  till  the  payment 
is  made,  which  cancels  the  bond. 

Mr.  Reeve,  for  the  plaintiffs  in  error. — The 
whole  will  ultimately  relblve  itfelf  to  this — 

M^hat 


334  County  of  LiTCHrisLD,  Nov.  Term. 

"^"787^  W^^^  is  the  right  rule  of  computing  intereil:  i' 
- — —^  The  plaintiffs  have  adopted  the  rule  made  by 
Kiffam,  the  court  in  the  year  1784;  not  becaufe  the 
^c  court  are  to  be  coiifidered  in  a  legifiative  ca- 
B^'^^ll  V^^^^y*  ^^  ^^  having  any  right  to  alter  the  law, 
but  that  the  rule  lad  adopted  by  the  court  is^ 
only  declarative  of  what  the  law  is  and  was. — 
There  is  a  pofitive  law  exifting,  which  deter- 
mines the  rate  of  intereftin  this  cafe  to  be  feven 
per  cent,  Vv^hat  will  be  the  amount  of  feven  pe7' 
cenL  depends  merely  upon  calculation ; — how 
that  calculation  fliall  be  made,  depends  on  the 
rules  adopted  by  the  fuperior  court ; — for  there 
can  be  but  one  true  rule  ;  and  if  the  court  have 
ever  gone  on  a  falfe  ground,  it  cannot  acquire 
the  force  of  law  by  long  ufage. -There- 
fore, the  true  rule  is  the  only  rule  which  can 
govern  this  contract,  notwithllanding  any  prac- 
tices which  may  by  miftake  have  taken  place. 
Examine  the  two  rules  contended  for  : — A 
bond  is  given  for  100/.  on  intereft,  at  {ix  per 
cent.  Sit  the  end  of  two  years,  when  112/.  is 
due,  105/,  is  paid.  By  the  rule  contended  for^ 
on  the  part  of  the  defendant,  at  the  end  of 
twenty  years  the  bond  would  be  fatisfied,  with- 
out the  payment  of  another  farthing. — This 
cannot  be  the  true  rule. By  the  rule  con- 
tended for  on  the  part  of  the  plaintiffs,  the 
creditor  will  receive  his  intereft  annually,  if 
payments  to  that  ambunt  are  made,  w^hich  is 
agreeable  to  the  fpirit  of  the  ftatute  regulating 
the  rate  of  intereft;  and  upon  that  ground  the 
payment  is  fuppofed  to  be  applied  to  the  dif- 
charge  of  intereft  due,  and  the  refidue  to  the 
principal;  for  the  law  exprefsly  refers  to  annu- 
al intereft. — By  the  other  rule,  let  feven  per 
cent,  be  annually  paid,  and  at  the  end  of  four- 
teen years  the  principal  will  be  di {charged  ; — 
the  creditor,  therefore,  does  not  get- feven  per 
cait.  intereft.  The 


County  of  Litchfield,  Nov.  TerMc  335 

The  rule  I  contend  for,  does  not  admit  inte-     "^TStT 
refl  to   accumulate  upon  intere(l.~The  con-     ==:==^=^ 
eluding  claufe   of  the  rule  is — "  That  if  any     KifTam, 
**  payments  be  made,  of  a  Icfs  fum  than  the  in-        ^^• 
"  tereft  arifen  at  the  time  of  fuch  payment,   no     jfyf^^f] 
'^  intereft  is  to  he  computed  but  only  on  the 
^^  principal   fam,    for   any    period.*'— -So    that 
whenever  the  payment  is  infufficient  to  abforb 
the  intereft  then  due,   the  next  calculation  of 
intereft  is  to  be  upon  the  principal  fum  only ; — 
therefore,  the  rule  is  fettled  upon  the  moft  con- 
frftent  and  permanent  principles. 

And  the  Court  agreed,  that  the  rule  was  to 
be  thus  underftood. 

This  being  a  ca.ufe  of  confiderable  impor- 
tance, the  court  direded  it  to  lie  for  further 
argument ;  and  afterwards,  in  the  fame  term^ 
it  was  again  argued  by  the  fame  counfel  as  be- 
fore. ' 

Mr.  Tracy, — When  payments  are  made  up- 
on a  contraQ:  carrying  intereft,  without  an  ex- 
prefs  application  to  the  principal,  the  prefump- 
tion  is,  that  they  v/ere  intended  to  be  applied 
to  the  intereft.  This  idea  is  ftrongly  corrobo- 
rated by  the  condu6l  of  the  parties  in  the  pre- 
fent  cafe  :  For  if  the  payments  are  not  to  be 
thus  applied,  the  defendant,  at  the  time  of  the 
iaft  payment,  had  exceeded  the  fum  recovera- 
ble by  the  bond,  to  the  amount  of  366/  15.  id. 
This  is  a  praPiical  contradiction  of  the  princi- 
ples now  contended  for  by  the  defendant,  and 
deftroys  the  prefumption  (arifmg  from  the  cuf~ 
torn  of  the  merchants  in  New- York)  that. the 
parties  impliedly  agreed  to  apply  the  payments 

and   compute  the  intereft  in  that  manner. 

The  rule  contended  for  by  the  plaintiffs,  allows 
no  intereft  to  accumulate  upon  intereft,  but  pur- 
fues  up  the  original  contract,  and  gives  the  cre- 
ditor his  feven  per  cent,  intereft,  and  no  more. 

It  * 


33^ 

KifTam, 

&c. 
againft 
■  Burrall. 


County  of  Litchfield,  Nov.  Term, 

It  cannot,  therefore,  be  intended  that  the  par- 
ties had  a  mode  of  calculation  in  view,  which 
would  effentially  vary  the  exprefs  tenor  of  the 
contra6l. 

Mr.  Strongy  on  the  other  fide,  again  enforced 
the  fubftance  of  his  firft  argument. 

Mr.  AdamSy  on  the  fame  fide.-T-A  bond  is 
'given  for  lOo/.  payable  at  the  end  of  one  year, 
vwith  intereft.  In  that  cafe,  the  principal  is  as 
much  promifed  at  the  end  of  the  year  as  the 
intereft,  and  there  is  no  preference  given  by 
the  terms  of  the  contraB;  therefore,  no  pre- 
fumption  can  arife,  that  intereft  is  to  be  firft 
paid.  In  regard  to  the  mode  of  computing  in- 
tereft; which  of  the  two  rules  contended  for  is 
moft  righteous,  is  wholly  out  of  the  cafe.  It 
may  be  a  political  queftion,  that  will  be  forever 

litigated,   and  remain   forever  uncertain. 

Here  is  a  bond,  which,  according  to  the  ufage 

i^©f  the  place 'w4ierc  it  was  given,  and  the  pradice 

Cof  the  courts  where  it  was  put  in  fuit,   at  the 

time  of  the  tranfaclion,  was  fully  paid  and  fa- 

.tisfied  ;  but  by  a  rule  afterwards  adopted,  it  is 

unpaid. — By  which  of  thofe  rules  ftiall  the  cafe 

be  governed  ?    Shall  the  fubfequent  rule  affe6l' 

contrails  carried  into  execution  ?    Clearly,  it 

cannot. 

Mr.  Reeve,  for  the  plaintiffs. — If  the  queftion 
came  up,  ftripcd  of  the  circumftances  attending 
this  cafe,  it  would  depend  merely  upon  a  cal- 
culation of  figures  :  It  would  be,  what  will  give 
the  creditor  his  feven  pe7'  cent,  intereft.  The 
latter  rule  will  do  it  perfeclly,  and  the  former 
-tloes  not. Notwithftanding  the  circumftan- 
ces of  this  cafe,  can  the  court  afiume  the  office 
of  Icgiflators,  and  fay,  that  feven  per  cent,  fliall 
produce  no  more  than  three  and  an  half?  Or 
'ftiall  they  perform  the  proper  duties  of  their 
office,  and  adjudge,  that  the  plaintiff's  recover 

the 


County  of  LitchfielDj  Nov.  Term.  337 

the  prodii6l  of  feven  per  cent,  agreeably  to  the     "^Tg^ 
contra6t  ?— -It  is  clear,  that  the  creditor  intend-     ==L=^ 
ed  to  have  taken  [even  per  cent,  and  there  is  no    KifTam, 
ground  to  fuppofe  an  underftanding  or  agree-       <^^; 
ment  to  take  lefs  ;    for  the  law  gave  him  that,     ^^^^"n 
and  the  contract  was  for  that. — If  the  creditor, 
or  any  other  perfon,   have  adopted  a  mode  of 
computation  which  gives  lefs  than  the  contra6t, 
k  is  a  miftake,   and  not  ev4dence  of  an  agree- 
ment to  receive  lefs.     When  he  applied  to  a 
court  of  juftice,  to  compel  performance  of  the 
contraft,  will  the  court  admit  a  palpable  mif- 
take to  be  introduced,  which  alters  the  nature 
of  the  contraft  ? — The  court  will,  -undoubtedly, 
adjudge,  that  the  contraQ:  fhall  be  purfued  up, 
and  what  the  law. allows  be  given. — As  to  the 
application  of  payments ;  the  law  v/ill  clearly 
apply  them  to  the  intereft  firft,  where  no  appli- 
cation is  made  by  the  parties  ;—otherwife,  [e-- 
V  en  per  cent,  for  one  year  is  ufurious,  and  the 
law  is  not  confiftent  with  itfelf. — If  feven  per 
cent,  is  the  lawful  rate  of  intereft,    the  law  will 
fo  apply  the  paymen-ts  aslo  give  that  fum  to  .the 
creditor. 

Judgement  of  the  court  of  common  pleas 
alBrmed. 

■  By  the  Court. — (Judge  Dyer  ahfentj — • 
The  only  queftion  in  law,  made  by  the  counfel, 
refpe6ls  the  mode  of  computing  intereft,  there 
having  been  a  number  of  payments  at  different 
times  : — But  the  declaration  counts  upon  a 
bond  given  for  the  payment  of  1950/.  New- 
York  money  ;  and  it  does  not  appear  by  the 
declaration,  or  pleadings,  that  the  bond  had  any 
condition  annexed,  or  that  the  obligation  was 
on  intereft  ;  and  it  appears  that  the  payments 
exceed  the  fum  of  the  obligation ; — therefore, 
on  that  principle  alone,  the  evidence,  as  ftated, 
^as  fufficient  to  prove  the  ifl'ue. 

Tt  But 


338 

KifTam, 

SCQ. 

agamji 
Burrall. 


C-o-UNTY  or  LiTCHriEiD,  Nov,  Tehm. 

Bat  there  was,  in  faB,  a  condition  annexed 
to  the  boBd,   for  the  payment  of  lialf  the  fum 
mentioned  an  the  obligation,    with  lawful  inte- 
r^ft,  by  a  day  certain.    This  brings  up  the  quef- 
tionnndifpiate  between  the  parties ;  and  the  de- 
termination depends  upon  the  application  of  the 
payments.     If  the  payments  had  been  applied 
to  the  intereft  due  at  the  time  they  were  made, 
and  only  the  furplus  to  the  principal,  there 
would  have  remained  a  confiderable  fum  due 
to  the  plaintiffs ;  but   if  all  the  payments  had 
been  applied  to  the  principal,  until  that  was  ful- 
ly difcharged,    and  the  refidue  to  the  intereft, 
the  debt  would  have  been  over  paid.     It  is  a 
fettled  rule  of  law,  that  he  who  pays  money  has 
a  right  to  dire^  the  application,  if  ther^  are  fe- 
veral  duties  to  which  it  may  be  applied  ;  but  if 
h€  neglccls  to  do  it,  the  receiver  may  make  his 
election.     In  this  cafe,    there  does  not  appear 
to  have  been  any  parti<:ular  application  made 
by  either  party,  but  the  fums  paid  were  fimply 
endorfed  on  the  bond. — Therefore,  the  inten- 
tion of  the  parties  muft  be  inferred  from  the 
common  cuftom  of  the  place  where  the  con- 
traft  and  payments  were  made,    and  their  own 
condu6l   refpeding   the  matter : — This    being 
tranfafted  in  the  city  of   New-York,  •  muft  be 
governed  by  the  laws  and  cuftoms  of  that  ftate  ; 
and  according  to  what  appears  from  the  evi- 
dence to  have  been  the  cullom  of  computing 
intereft  in  New- York,    the  bond  is  over  paid. 
But  as  the  parties  might  have  agreed  to  apply 
fome  of  the  payments  to  the  intereft  due  at  the 
time  they  were  made,  before  the  principal  was 
fully  paid,  it  is  prefumed  to  be  the  cafe ;  for 
k  was  both  equitable  and   legal. — On  thefe 
principles,  and  from  the  length  of  time  fmce 
the  money  became  due,    arifes  a  ftrong  pre- 
fumption,  that  there  hath  been  a  fettlement  of 

the 


County  of  Litchfield,  Nov.  Ter 


M., 


359 


the  matter  in  demand  agreeably  to  the  minds     ~^^^ 
of  the  parties.  — '  ■■%. 

judgement  was^  therefore,  affirmed.  KiiTam, 

&c. 


McDonald  and  Others  againjl   Fisher    and 

B  A  L  D  W I  i\  . 

ERROR  from  the  court  of  common  pleas^. 
upon  a  bill  of  exceptions.— The  plain-^ 
tiffs  in  error  brought  their  action  of  trover^ 
againll  Fiffur  and  Baldwin^  to  the  court  of 
common  pleas.— The  general  iifue  was  plead- 
ed,  and  ciofed  to  the  court ;  and  after  a  hear- 
ing, judgement  was  for  the  defendants.— The 
points  of  controverfy  in  the  cafe  were  queilions 
in  law,  arifing  from  the  fads. — After  judge- 
ment,  the  plaintiffs  tendered  a  bill  of  excepti- 
ons, ftating  the  cafe,  as  it  appeared  in  evidence^ 
which  was  certified  by  the  Judge,- — Upon  this 
bill  of  exceptions,  vjrit  of  error  was  brought, 
and  abatement  pleaded,  upon  the  principle,  that 
a  bill  of  exceptions,  bringing  up  the  whole  mat- 
ter in  controverfy,  after  trial  upon  the  general 
iiTue,  can  be  no  legal  foundation  for  a  writ  of 
error. 

Mr.  Tracy y  for  the  defendants  in  error,  cited 
Buller's  Niji  Prius,  page  310,  which  authority, 
he  contended,  contained  the  whole  of  the  Eng- 
lifli  law  upon  the  fubjetl  of  bills  of  exceptions : 
That  upon  the  principles  there  laid  down,  a  bill 
of  exceptions  is  never  admitted  to  draw  the  whole 
matter  into  examination  again,  but  only  a  fingle 
point.  It  would  be  of  dangerous  tendency  to 
fubmit  the  whole  caufe  to  the  memory  of  the 
Judge,  who  is  to  certify  the  bill ;  and  it  might 
Tt2  be 


agatnft 
BurralL 


340  County  of  Litchfield,  Nov.  Term, 

^Tg""  be  made  iife  of  to  remove  cafes  from  the  low- 
==^==  er  courts  to  the  fuperior  court,  which  are  not 
McDonald  by  Jaw  appealable,  and  would  defeat  the  wife 
^^'  i'^tention'of  the  ftatute  regulating  appeals: — 
^i^er  &c-  ^^'^^  ^^^^  pra61ice  was  novel  in  this  ftate^  and 
had  not  received  an  adjudication  of  court  up- 
on it :  That  the  firfl  inftance  of  a  Mil  of  excep- 
tions being  introduced  in  this  manner,  was  in 
the  cafe  of  Bradley  and,  Others  vs.  Camp  (ante 
77)  there  it  p-dffed  fubjilentio.  So  that  no  au- 
thority can  be  derived  from  the  cafes  in  which 
it  hai>  been  permitted;  and  the  praftice is  preg- 
nant with  many  evils.  If  it  be  eftabliflied  in 
this  cafe,  the  principle  will  extend  it  to  every 
trial  which  depends  on  fafts ;  and  there  may  be 
great  difficulty  in  ftating  the  evidence,  as  it 
might  flrike  the  minds  of  the  triers.  Number- 
lefs  circumftances  may  attend  a  caufe,  which 
would  influence  the  decifion,  but  cannot  be 
ftated  in  a  bill  of  exceptions.  The  mode  of 
giving  teftimony,  often  deflroys  the  credit : — 
That  the  practice,  therefore,  cannot  with  fafety 
be  admitted. 

Mr.  Reeve,  on  the  other  fide,  urged  the  im- 
portance of  uniformity  of  decifion  upon  all  quef- 
tions  of  law,  from  the  loweft  courts  to  the  high- 
eft  :  That  whenever  a  caufe  turned  upon  a  mere 
queftion  of  law,  it  was  immaterial  whether  the 
fa6ls  from  which  it  arofe  were  conceded  by  the 
pleadings,  or  eftablifhed  by  evidence  ;  if  the 
determination  was  not  conformable  to  law,  it 
was  equally  neceffary  that  it  fhould  be  carried 
up,  and  correded  :  That  the  ftatute  allowing 
appeals  was  not  provided  to  correct  errors  in 
point  of  law,  but  to  afford  the  parties  the  op- 
portunity of  a  more  ample  defence,  where  they 
apprehend  themfelves  to  have  been  deficient. 
A  writ  of  error  is  the  remedy  againft  all  erro- 
neous judgements  in  point  of  law,  and  it  ought 

ever 


County  of  Litchfield,  Nov.  Term.  341 

ever  to  be  fuftained  where  that  appears.  Where     "^iTgyT 

the  evidence  is  of  fuch  a  nature,  that  it  can  be 

demurred  to,  caufes   raay    be   removed  ;    but  McDonald 
where  the  evidence  cannot  be  demurred  to,  and       ^^• 
the  iury  negleft  to  find  a  fpecial  verdift,  bills  of  r^-^I^^%,^ 
exceptions  have  been  found  neceilary.     Many 
precedents  might  be   cited   from  the    Englifh 
books  of  authority,    to  this  purpofe — See  Cow- 
per,  160,  Moyjion  ys,  Fabrigas. — 1  Blackjlone's 
Rep,  555,  Money  vs.    Leach. — Douglafs,  .336, 

Blaquier  vs,  Hawkins. The  cafe  of  Bradley 

ajid  Others  againjl  Cumpy  although  it  paffed  [uh 
fikntio,  will  ferve  to  iliuftrate  this  pofition,  that 
hills  of  exception^  in  cafes  like  this,  are  neceifary 
for  the  furtherance  of  juftice.  In  that  cafe,  the 
only  difpute  concerned  queilions  of  law,  w^hrch 
arofe  from  the  fafts  conceded  and  proved  at  the 
trial ;  and  there  would  have  been  no  remedy 
againft  the  erroneous  decifion  of  the  court  of 
common  pleas  j  but  upon  the  cafe  being  remov- 
ed by  bill  of  exceptions,  the  judgement  was  unci- 
nimoufly  reverfed.  There  would  have  been  a 
failure  of  juftice  in  that  cafe,  as  well  as  a  pre- 
cedent for  erroneous  principles,  if  the  practice 
now  contended  for  had  not  been  permitted  :— - 
That,  though  it  is  laid  down  in  the  Englifli 
books  of  authority,  that  the  bill  of  exceptions 
muft  be  confined  to  a  fingle  point,  no  n^ore  is 
intended,  than  that  there  is  to  be  no  further  dif- 
pute about  fa8;s,  but  the  cafe  muft  be  brought 
to  a  point ;  the  point  may  arife  from  many  fads 
taken  together,  all  which  muft  be  ftated  in  the 
bill.  It  cannot  include  any  controverted  fads,- 
but  merely  the  law  arifing  from  fuch  as  arc 
proved  or  agreed.  Where  the  controverly  is 
about  the  fads,  there  can  be  no  bill  of  excep- 
tions. 

Mr.  Adams,  for  the  defendants  in  error,  con- 
tended—That  bills  of  exceptions  in  this  loofc 

manner 


342  County  of  Litchfield^  Nov.  Term* 

^Ts^  manner,  were  of  very  dangerous  tendency ;  for 
!=^=^=  that  it  miaht  fabjed  a  caufe  to  a  fecond  trkl^ 
M'Donald  upon  a  partial  dating  :  That  the  party  who 
^-^  tenders  the  bill  will  always  make  h  moft  fa- 
Fimer&c  ^^^'^^b^^  to  himfelf,  and  the  memory  of  the 
Judge  may  not  be  fufficient  to  correti  him  ; 
and  the  Judge  muft  not  be  left  to  his  option, 
whether  to  certify  the  bill  or  not,  but  he  mult 
be  compelled,  or  the  pra6tice  would  defeat  it- 
felf ;  And  that  the  Judge  muft  alfo  certify  that 
the  facls  ftated  in  the  bill  were  proved,  not  thai 
it  was  teftified,  or  given  in  evidence  :  That  the 
jury  might  find  fa8:s  proved  one  way,  and  the 
court  be  of  opinion,  that  they  were  proved  the 
other  way,  and  a  bill  of  exceptions  be  tender- 
ed, to  remove  the  caufe  from  the  verdi^l  of  the 
jury.  If  the  court  fhould  certify  that  bill,  the 
trial  by  jury  would  be  rendered  totally  ufelefs. 
But  if  a  practice  of  this  kind  be  expedient,  it 
requires  a  ftatute  to  authorize  it,  and  to  dehne 
and  limit  its  extent.  In  England,  bills  of  ex- 
ceptions were  introduced  and  regulated  by  fta- 
tute. If  the  pra6tice  here  introduced  is  found- 
ed on  that  ftatute,  it  cannot  be  carried  to  the 
extent  now  contended  for.  The  cafe  o^  Moyf- 
ion  vs.  Fabrigas,  cited  on  the  other  fide,  does 
not  compare  with  this  ;  In  that,  and  every 
other  cafe  from  the  books,  the  fa6ts  ftated  were 
agreed,  and  the  queftions  arifmg  were  mere 
queftions  of  law,  and  confined  to  a  fingle  point ; 
but,  by  the  bill  under  confideration,  there  is  an 
attempt  to  ftate  all  the  evidence  on  both  fides, 
and  carry  the  cafe  up  in  grofs.  This  evident- 
ly may  fubjed  a  caufe  to  be  finally  decided  up- 
on an  imperfect  ftating ;  minute  and  unde- 
fcribeable  circumftances,  may  weigh  in  the 
Icale  of  juftice,  and  totally  change  the  com- 
plexion of  a  caufe. 

That 


County  of  Litchfield,  Nov.  Term.  34g 

That  this  bill  of  exception  was  unfupportable     ^TgT" 
by  the  Englifh  authorities,  on  another  ground;     ====^ 
for  that  it  ought  to  have  been  taken  at  the  trial,   M 'Donald 
and  not  defered  till  afterward;  and  that  no  bill        &c. 
of  exceptions  ought  ever  to  be  allowed^  unlefs   p^i'^^'^^1-, 
tendered  at   the  time  of  trial. — And  to   this 
point  he  cited,  i  Salieid,  288,  Wright  vs.  Sharp. 
1  Bacon*s  Abrid,  326. — Bulkr's  Nifi  Frius,  tit. 
Mili  of  EMeptioms. 

The  plea  in  abatenncnt  adjudged  fuSicient. 


Phelps  againft  S  a  n  f  o  b  d  . 

ACTION  of  trefpafs,  vi  et  nrmis^  for  enter* 
ing  the  plaintiff's  land,  cutting  and  de-* 
ftroying  his  timber,  &c.  The  iffiie  was  thus 
clofed,-— **  zvhich  the  defendunt  proyi>  7nay  be  en-- 
quired  0/  by  the  court  :"■ — **  And  the  plaintiff  like- 
wife,'' — Upon  this  iffue  the  caufe  went  to  trial 
by  the  jury,  and  after  a  verdiB  for  the  defend- 
ant, it  was  moved  in  arreft  by  the  plaintiff,  and 
among  other  things  alledged,- — that  the  iffue 
being  clofed  to  the  court,  the  jury  could  not 
legally  return  any  verdi6l  in  the  caufe;  and^ 
therefore,  the  verdiQ:  returned  %^^as  not  a  fuffi- 
cient  foundation  to  render  judgement  upon. 

Mr.  Adams  and  Mr.  Reeve,  for  the  defendant^ 
then  moved,^That  the  record  might  be  amend- 
ed, by  inierting  the  word  country  in  the  doling 
of  the  pleadings,  inftead  of  the  word  co2/r^  ;  aU 
ledging,  that  it  was  the  intention  of  the  parties 
to  have  clofed  the  iffue  thus,  and  that  it  was 
merely  through  miftake  that  the  caufe  went  to 
trial  clofed  otherwife.  They  contended,  that 
a  mif-joining  of  iffue  was  always  held  to  be 

amendablCj. 


344  County  of  Litchfield,  Nov.  Term. 

"    g„^     amendable,  and  that  innumerable  inftances  of 

the   kind  might   be  produced  from  the  books  ; 

Phelps     and  cited  8  Co,  161  b, — CowpeVy  407,    Sawyer 
againji     ^^^  PococL'—Ib.  425,  VcrM  and  Smith  vs.  Ra^ 
JaeL 

On  the  other  fide,  it  was  contended,  by  Mr. 
Tracy  and  Mr.  Baldwin — That  by  the  law  of 
this  ftate,  the  parties  had  right  to  join  ifTue  ei- 
ther to  the  court  or  country  ;  and  therefore,  it 
was  not  mere  matter  of  form,  that  was  propofed 
to  be  amended,  as  in  the  cafes  cited,  but  that 
it  was  an  alteration  in  a  material  and  effential 
part  of  the  ifTue,  which  was  not  legal.  They 
cited,  1  StrangCy  641,  Cooper  vs.  Spencer. 

Law,   Chief  Jujiice. Here  was  an  ifTue 

tendered,  and  nothing  left  for  the  other  fide, 
but  to  join  ;  and  the  cafe  being  put  to  the  jury, 
it  is  prefumed;  that  it  was  done  by  mutual  con- 
fent  and  agreement,  and  the  omiffion  a  mere 
mifprifion;  and  therefore,  ought  not  to  be  taken 
advantage  of,  to  defeat  a  trial.  And, 

By  the  Court.—- — —Let  the  record  be 
amended. 


Phelps  againjl  Phelps» 

AFTER  this  caufe  was  called  for  trial,  and 
the  jury  impannelled,  Mr.  Tracy  moved 
for  a  rule,  that  bonds  for  profecution  might  be 
entered:  But, 

The   whole  Court. — (Judge  Dyer  rt^- 

je^t) — Said,  the  motion  was  too  late  :    That  it 

had  been  repeatedly  decided,  that  fuch  rriotions 

Gould  not  be  admitted  in  this  flage  of  the  cafe. 

The 


o 


County  of  Litchfield,  Nov.  Term.  345 

The  State  againjl  David  Thomson.  ^^^  g^^^^ 

N  an  indiament,  for  paffing  a  counterfeit   Jf^^'^^fi 


loan-office  certificate,  the  counfel  for  the 
prifoner  objeded  to  the  witneffes  teiiifying  any 
thing  which  the  prifoner  had  faid  to  them  con- 
fidentially, when  endeavouring  to  perfuade 
them  to  ufe  their  influence,  that  he  might  be 
improved  as  a  witnefs  againft  his  affociates: — 
But, 

By  the  whole  Court.-- When  difclo- 

fures  of  that  kind  have  been  made  to  the  au- 
thority examining,  or  to  the  State*s  Attorneyy 
under  fuch  circumftances,  that  the  perfon  dif- 
clofing  confidered  himfelf  as  a  witnefs,  the 
court  have  never  allowed  it  to  be  given  in  evi- 
dence againft  him  ; — but  this  indulgence  has 
not  been  extended  further. 


Strong's  Cafe, 


TRE  laft  term,  Mr.  Retve  and  Mr.  Tracy, 
moved — That  a  mandamus  might  iflue 
againft  Jedidiah  Strongy  Efq.  town-clerk  and  re^ 
gijler  of  deeds  for  the  town  of  Litchfield  y  to  re- 
cord a  certain  deed  of  bargain  and  fale,  given 

by  Elijah  Wadfworth  to  Alexander  Catlin. > 

The  fads  ftated,  as  the  ground  of  the  motion, 
were  : — That  faid  Wadfcvorth,  being  colleftor 
of  ftate-taxes,  about  the  15th  day  of  May, 
1785,  fold,  at  public  au8;ion,  to  faid  Catliny  a 
tra6l  of  land,  containing  about  forty  acres,  at 
the  fum  of  twenty-eight  pounds  :  That  Catlin 
paid  Wadfworth  the  fum  bid  for  the  land,  and 
U  u  receivecj 


34;6  County  of  Litchfield,  Nov.  TfiiRr.r. 

"^rgT     received  from  him  a  legal  deed  thereof,  which 
s===     he  lodged  on  Jile  in  faid  rcgifter's  office,  to  be 
Strong's    recorded  according  tolaw  ;  and  that  more  than 
^^^*'       one  year  had  expired  (in ce  faid  deed  was  lodged 
on  file,  but  that  faid.  regifter  had  not  recorded 
it,  ;a?id  abioluteJy  refufed  to  do  it.— llie  party 
praying  for  the  manda^nus,  appeared  in  court, 
juid  made  oath  to. the  truth  of  the  hS.s  ftated 
in  the   motion;  and  the -ad  verfe  party  being 
ferved  with  notice,  Mr.  Adams  this  term,  (hew- 
ed  caufe   againft   the  writ.      He  contended— 
Tka:t  by  the  Yii^es  -of  the  Englifli  law,  a  manda- 
mus could  not  iifue  in  this  cafe  :   That  it  iffu-es 
only  in  cafes  which  relate  to  the  public,  and  are 
of  general  confequence  : — A^  where  a  man  is  re- 
futed to  be  admitted,  or  wrongRilly  turned  out 
of  any  office  or  franchise,  that  conceriis  the  pub- 
lic, andno  other  remedy  15  provided  by  law,  this 
writ  lies  : — But  it  extendi  not  to  an  ex^ctitive 
office,  relative  to  a  matter  of  mere  private  right. 
Nor  does  it  extend  to  the  redrefs  of  any  injury  to 
an  individual,  by  an  officer  in  the  execution  of 
his  office  ;  becaufe  the  law  hath  provided  ample 
means  of  redrefs  in  the  ordinary  courfe  of  juf- 
tice  :  That  a  mandamus  is  an  extraordinary  re-- 
medy,  applied  to  cafes  of  a  public  aature,  which 
cannot  be  reached  by  the  ordinary  procefs  of 
law;  and  that  it  is  not  adapted  to  the  relief  of 
private  injuries,  which  may  happen  betweeii  in- 
dividuals, becaufe  it  is  delatory  and  expeniive : 
For,  firftly,    The  motion  muft  be  made  to  the 
court,  and    the  faBs   neceifary    to    fupport  itj 
ftated. — Secondly,  The  adverfe  party  muft  be 
ferved   v/ith  notice,   and  time  given  to  j(hew 
caufe,  that  he  may  have  an  opportunity  to  con- 
tend the  propriety  of  the  motion,  and  take  ad- 
vantage  of  the  various  matters  applicable  to 
tbat  ftage  of  the  procefs.' — ^Thirdly,  The  man- 
damus ilfues,  and  time  is  given  for  the  party  to 

make 


1^1- 


County  of  Litchfield,  Nov.  Term. 

make  his  return. — Fourthly,  The   fuificiency 

of  the  return  is  to  be  tried. — Fifthly,  A  feremp^ 

tory  mandamus  ifllres.— Andlaftly,  In  cafe  of  dif-     Strong's 

obedience,  an  attachment  iffues,  for  a  contempt,      ^^^^' 

v/hich  may  alfo  admit  of  a  defence. And 

therefore,  much  more  time  is  confomed  than  in 
ordinary  procefs,  and  the  expence  confequent- 
ly  greater ;  and  it  would  be  detrimental  to  the 
])ublic  good,    to  admit  this  writ  to  be  ufcd  in 
cafe  of  a  mere  private  wrong :— That  all  the 
Englilh  ilatutes,  refpetting  a  w«?z^^mi65,  clearly 
have  reference  to  matters  in  which  the  public 
is  party.     The  preamble  to  the  ftatute  of  the 
2  Geo.   I.   is  in  thefe  words : — "  Whereas,   in 
''  many  cities,  boroughs,  and  towms  corporate, 
^^  within  that  part  o{  Greats  Britain  ca,lled  Eng-- 
^*  land,    V/aleSy    and    Berwick-upon-Tweed^  the 
**  eiedion  of  the  mayor,   bailiff  or  bailiffs,  or 
**  other  chief  officer  or  officers,  is,   by  charter^ 
'*  or  antient  ufage,  confined  to  a  particular  day 
''  or  time,  without  any  provifion  how  to  aO:- or 
*'  proceed,  in  cafe  no  elettion  be  then  made  ; 
''  and  it  frequently  happen-s^  that  by  fuch  char- 
**  ter  or  ufage,    particular  acts  are  required  to 
**  be  done  at  certain  times,  in  order  to  and  for 
*' the  compleating   of  fuch  eleciions;  and  by 
^*  the  contrivance  and  default  of  tlie  perfon  or 
"  perfons,  who  ought  to  hold  the  court,  or  pre- 
**  fide  in  the  affembly,  where  fuch  elcdions  are 
to  be  made,  or  fuch  atls  to  be  done,  that  no 
courts  or  affemblies  have  been  held,  or  elec- 
tions made,    or   fuch   afts  don€,   within  the 
**  times  fixed  for  that  purpofe,  &c.   To  remedy 
"  which  mifchief,"  &c. — That   this   ftatute  is 
fully  defcriptive  of  the  obje£l  of  a  ^nandamus^ 
and  of  the  occafions  on  which  it  is  to  be  uled : 
That  it  is  a  writ  fuppofed  to  be  founded  on  ne- 
cefiity,  and  iffuable  only  where  Jio  other  reme~ 
dy  is  provided.   3  Bac.  Abrzd,    536.     iku  that 
U  u  2  the 


<( 


« 


34B  County  of  Litchfield,  Nov.  Term. 

"""itSV     ^^^  prefent  cafe  is  not  of  that  defcription. 

- — ~J=L  A  mandamus  is  here  moved  for,  againft  an  offi- 
Strong's  ccr  merely  executive,  and  relative  to  a  matter 
Cafe.  o^  mere  private  right.  The  objecl  is  to  obtain 
a  fpecific  performance  on  the  part  of  the  Re- 
gift^r ;  but  the  court  cannot  compel  it.  A 
peremptory  mandamus  may  be  difregarded,  and 
the  procefs  for  contempt,  can  produce  nothing 
more  than  a  fum  of  money.  The  fame  thing- 
would  be  the  refult  of  a  private  fuit  by  the  in- 
dividual   injured. That,    therefore,    there 

could  be  no  greater  neceffity  for  fuch  a  writ 
in  this  cafe,  than  in  cafe  of  a  IherifFwho  fh^uld 
refufe  to  ferve  a  writ,  committed  to  him  for 
that  purpofe. 

He  contended — That  if  the  prefent  cafe 
came  within  the  Englifh  rules  of  practice,  re- 
fpeding  writs  o^  mandamus ,  ftill  it  was  not  fuf- 
tainable  by  the  laws  of  this  ftate.  The  court 
could  exercife  no  fuch  authority  as  was  moved, 
unlefs  derived  from  pofitive  law,  or  immemo* 
rial  ufage  :  That  no  fuch  law  had  paffed  in  this 
ftate,  nor  any  fuch  ufage  obtained  :  Tlvat  if  the 
party  complaining  is  not  fatisfied  with  purfuing 
his  remedy  by  ordinary  procefs  of  law,  his  only 
refort  is  to  the  legiflature  ;  for  there  is  exprefs- 
ly  referved  the  power  of  "  calling  every  officer 
*'  whatever,  to  an  account,  for  any  mildemean- 
"  or,  or  mal-adminiftration  ;  and  for  juft  caufe, 
"  to  fine,  difplace,  remove  him,  ordeal  other- 
"  wife,  as  the  nature  of  the  cafe  fhall  require.'* 
(See  Stat.  27 — 28.)  The  powers  here  defined, 
as  appertaining  to  the  legiflature,  are  not  grant- 
ed to  any  fubordinate  jurifdittion  in  the  ftate; 
and  that  there  can  be  no  occafion  for  any  court 
to  exercife  them,  when  application  may  fo  ea- 
ftly  be  made  to  the  legiflature  itfelf. 

Mr.  Reeve  and  Mr.  Tracy,  on  the  other  fide, 
contended — That  the  firft  inftance  of  a  manda^ 

Tuu: 


County  of  Litchfield,  Nov.  Term.  349 

mus  to  be  found  in  the  books,  was  Bagg's  cafe-y     ^Tg^ 
11  Coke,  93  ;  and  the  iirft  ftatute  recognizing     ====i 
the  practice,  was  g  An7ie,  cap.  20.  which  regu-     Strong's 
lates  the  mode  of  proceeding:  That  this  prac-      ^^^^^ 
tice  was  a  part  of  the  common  law,    indepen- 
dant  of  any  ftatute,  and  undoubtedly  derived 
itfelf   from    neceffity.       Hence    they   infercd, 
that  the   fupreme   courts  in  this    country^  as 
w^cll  as  in  England,  from  the  nature  and  ob- 
jetl  of  their  appointment,  muft  have  a  general 
fuperintending  power  over  all  inferior  courts, 
and  offices;  to  reftrain  them  within  their  proper 
bounds,  and   to  oblige  them  to  execute   that 

juftice  which  their  duty  requires. = There^ 

fore,  the  right  of  the  fuperior  court  of  this 
ftate,  to  iffue  2.. mandamus y  when  neceifary  to 
thofe  purpofes,  was  infeperably  conneded  with 
the  appointment;  and  that  it  was  no  argument 
againil  it,  that  the  court  had  never  before  been 
called  upon  to  exert  that  power ;- — That  the 
claufe  of  the  ftatute  refered  to,  on  the  other. 
fide,  could  not  be  intended  to  abridge  the  ge^ 
neral  authority  of  the  court  in  this  cafe,  but 
refpefted  matters  of  impeachment  only  :  That 
to  apply  to  the  iegiflature  upon  the  numberlefs 
occafions  of  this  kind,  which  might  occur^ 
would  be,  to  convert  it  into  an  executive  courts 
Therefore,  that  the  great  queftion  was— whe- 
ther this  cafe  came  within  the  general  princi-- 
pies  of  law,  refpe^ting  the  writ  of  mandamus,— 
They  contended  it  did: — For  that  it  was  agaiiift 
an  officer  of  the  higheft  truft ;  one  who  is  en^.- 
trufted  with  the  cuftody  of  the  titles  which  he 
conveys,  and  to  record  and  authenticate  his 
own — a  truft  repofed  in  no  other  officer  in  the 
ftate. — If  he  refufe  to  difcharge  the  duties  of 
his  office,  there  muft  be  a  power  to  compel  a 
fpecific  performance  ;  otherwife,  there  v/ould 
not  be  an  adequate  remedy  :  For  a  title  (which^ 

would 


35^  CouJs'TY  OF  Litchfield,  Nov.  Term. 

"^TStT  ^^c)uld  not  be  authentic  without  being  regiftcr- 
==^=  ed)  might  be  of  ten  times  greater  value  than 
btrong's  the  ability  of  the  Regifter  to  pay;  and  if  he 
Cafe.  might  defeat  it,  by  refufing  to  perform  the  du- 
ties of  his  office,  and  no  other  remedy  provid- 
ed than  a  pjrivate  fuit,  there  would  be  a  failure 
of  juftice,  which  the  law  never  can  intend: — - 
That  the  application  to  the  court,  in  this  cafe, 
was  to  compel  a  public  officer  to  perform  an 
a6i,  in  favour  of  an  individual,  which  the  duty 
of  his  office  required:  That  HaJJci's  cafey  i 
Stra,  211,  was  in  point.  There  a  mandamus 
was  granted,  directed  to  the  Juftices  of  the 
Peace  for  the  county  of  Chefter,  commanding 
them  to  make  a  rate,  to  reimburfe  one  HaJJel 
the  money  he  had  expended,  as  furveyor  of 
highways. — And  fo  is  HunVs  cafe,  i  Stran.  94, 
where  a  mandamus  iifued,  to  compel  the  trea- 
furer  of  a  county  to  reimburfe  a  conilable  the 
extraordinary  charges  he  had  been  at,  in  pro- 
viding carriages,  on  an  expedition  into  Scot- 
land. Alfo,  1  Stran,  42.  And  that  many 
other  cafes  might  be  cited,  where  this  writ  hath 
iffued  in  favour  of  an  individual,  to  compel  the 
performance  of  an  official  act,  which  juftice  re- 
quired ffiould  be  done.  3  Black,  Com,  110. — 
Wood's  Ins,  564. — That  from  an  examination 
of  the  authorities,  it  would  not  appear  (as  was 
contended  on  the  other  fide)  that  this  writ  could 
not  be  extended  to  a  matter  of  private  right : 
That  the  idea  arofe  from  not  carefully  confi- 
dering  the  diftin6lion  between  public  bodies 
and  private  perfons :  That  when  it  relates  to 
public  bodies  merely,  it  is  a  writ  of  right,  and 
is  iffued  of  courfe  ;  but  when  it  relates  to  indi- 
viduals, or  private  perfons,  it  is  difcretionary, 
and  the  court  will  examine  into  the  caufe  and 
ground  of  complaint  before  the  writ  is  granted. 
They  cited  the  following  authorities  : — 3  Bac, 

Abrid. 


Cafe* 


County  of  Litchfield,  Nov.  Term.  351 

Abrid.  title  Mandamus  (A)  and  (C)- — Bulkr's  '^{^^, 
Nifi  Frius. — 2  Salkeldy  446,  yoi.—  i  Sal,  175.  =^==:^==^^ 
Strange,  ^p^^,    1003,    1157,    1180,   697,    1082,     Strong^a 

i59>  797»  551*  5^>  59>  ^^^'  ^9^^   ^3'^>  893, 
8.95. — 3  Bla<:k,  Com.  264. — 4  Black,  Cvm.  434. 

2  ^kc<4.  Rep.  J 16, — 2  Burrowy  1043,  1197.— 

3  Burrow,  1 5  3  ^2  • — 4  ^ urrow^  1991. — Durnjord.. 

^47- 

The  court  ordered  a  mandamus  to  iirue,   re-^ 

liirnable  the  next  term. 

Note. — At  February  ter^n,  1788,  the  manda- 
.mus  was  returned ;  and  the  court  was  requejiei 
to  direB  what  jh,ould  be  the  rule  of  proceedings  in 
trying  the  fiifficiency  of  the  return;  whether  the 
common  law,  as  it  flood  be/ore  the  flat,  g  Anne, 
or  that  Jlatute  ;  and  the  court  [aid ^  theJiatiUe  of 
Anne  fkould  be. the  rule  of  proceeding. 


M o  u  L  T  R  G  p  againp:  B  e  n  n  e  t., 

THE   declaration  was  upon   a  promife  to 
pay  16/.  125.— and  concluded  in  damage 
30/.  The    caufe  came  up  by  appeal,  and 

went  to  trial  without  any  exception  being  taken 
to  the  legality  of  the  appeal.— — -A  verdi6l  was 
found  for  the  plaintiff,  and  the  defendant  moved 
in  arreit,  on  the  ground,  that  the  matter  in  de- 
mand was  below  the  iurifdidion  of  the  court: 
And, 

By  the  Cov\\t.'^( Judge  Dyer  abfentj'^ 
The  judgement  was  arrefted. 


Butler 


352 


County  of  Litchfield,  Nov.  Term. 


^1787. 

Batler 
againji 
Scovel, 


Butler  againji  Scovel. 

ERROR  from  the  judgement  of  a  Juftice  of 
the  Peace. — -—The  original  action  was 
book-debt,  brought  by  Scovel  againft  Butler  diudi 
Porter^zs  beingin partnerfhip — The queftion  on 
trial,  was — whether  there  exifted  a  partnerfhip 
or  not.  To  fupport  the  iffue,  oral  teftimony  was 
exhibited,  which  was  demurred  to,  by  the  de- 
fendant.— And  the  judgement  rendered  was 
fet  forth  to  be  in  thefe  words  :  (after  the  cap- 
tion) "  On  a  plea  of  demurrer  to  the  evidence; 
*' judgement — that  the  matters  contained  in 
**  evidence  are  fufficient  to  fupport  the  iffue." 
The  judgement  was  affirmed  :  For, 

By  the  Court. — (Judge  Dyer,  ahfent,) — 
There  is  no  propriety  in  d&mMxmgto parole evi- 
dence  before  a  Juftice  of  the  Peace.  It  ferves 
but  to  entangle  his  proceedings?  and  to  bring 
to  a  re-hearing,  after  him,  in  this  court,  upon  a 
partial  ftating  of  the  teftimony,  queftions  of 
facl,  too  trifling  for  an  appeal  to  the  common 
pleas.  It  was  not  neceffary,  therefore,  for  him 
to  decide  upon  the  demurrer ;  and  it  is  imma- 
terial what  he  has  faid  about  it ;  though  it  does 
not  appear  but  his  determination,  that  the  evi- 
dence did  fupport  the  iffue,  was  right;  for  one 
of  the  defendants  declared  they  were  in  part- 
nerfhip, and  the  condu8:  of  the  other  implied 
the  fame. 

It  does  not  appear  from  the  record  fet  forth, 
what,  or„in  whofe  favour,  the  judgement  upon 
the  merits  wasi  or  that  any  has  been  rendered; 


therefore, 
verfe. 


nothing  is  before  this  court  to  re- 


Parker 


County  of  Hartford,  Nov.  Teum.  353 

l^ ARKEK  againji  AVEKY,  Parker 

UPON  a  motion  to  fet  afide  an  award  of  ar-  ^f'^-/^ 
bitrators^ appointed  by  fubmiffion  and  rule  ^'^^^* 
of  court,  on  the  ground,  that  the  arbitrators  had 
miilaken  their  evidence  and  plain  principles  of 
law. — — The  Court,  upon  debate,  denied  going 
at  all  into  the  merits  of  the  award,  as  unprece- 
dented in  this  court,  and  as  being  unreafon- 
able,  fince  it  would  defeat  a  main  delign  of  ar- 
bitraments to  fubje6t  awards  to  a  reviiion,  in 
nature  of  an  appeal ;  and  fince  the  arbitrators 
are  judges  of  the  parties  own  choofing;,  and  at 
liberty  to  decide  upon  any  principles,  which  in 
their  opinion  will  do  juflice  between  the  par- 
ties : — That  the  reafonablenefs,  or  unreafon- 
ablenefs  of  an  award,  does  not  affe6t  its  vali-. 
dity,  fo  that  there  be  not  mifbehaviouror  cor- 
ruption ia  the  arbitrators. — Sira*  301. — 2  Bii?\ 
701. — 1  Aik*  64. 


Parker  againjl  Avery. 

UPON  a  motion  to  fet  afide  a  report  of 
auditors — The  exception  was — That  they 
had  miftook  in  point  of  faft  j  but  an  enquiry 
was  denied.  And, 

B Y  T H E  Court. It  is  peculiarly  the  pro- 
vince of  auditors,  as  of  juries,  to  weigh  evi- 
dence and  determine  fads  ;  and  herein  there 
is  to  be  no  enquiry  after  them ;  though,  as  they 
are  to  take  the  law.  for  their  rule,  their  award 
may  be  fet  afide,  if  it  appears  from  the  face  of 
their  proceedings,  or  upon  enquiry  of  them  in 
W  w  court. 


i54  County  op  Hartford,  Nov.  Term. 

"^Tgt^  court,  that  they  have  made  out  their  award 

^==.^=  upon  fuch  inferences  from  fafts  as  the  law  will 

Pa-ker  not  warrant,  or  have  clearly  miftook,  with  re- 

agatnfi  ^^^^  ^^  j|^^  admiffioH  of  evidence. 

Aver/.  ^ 


Avery  againjl  Kinsman* 

THIS  aQion  was  upon  an  implied  promifc^ 
to  re-pay  to  the  plaintiff  monies  received 

of  him  by  the  defendant. The  declaration 

was — "  That  on  the  2 2d  day  of  June,  1786, 
"  the  defendant  received  of  the  plaintiff,  142/. 
**  145.  lod,  lawful  money,  which  was  the  pro- 
**  per  money  of  the  plaintiff;  and  that  the  de- 
"  fendant  received  the  fame  for  the  plaintiff  *s 
*'  ufe,  and  to  account  with  the  plaintiff  there- 
''  for  in  a  reafonable  time  afterward,  when 
"  thereto  requefted:  And  that  the  defendant 
"  thereupon  became  liable  by  law,  to  pay  to 
**  the  plaintiff  the  aforefaid  fum  of  142/.  145. 
**  vod.  lawful  money,  and  being  fo  liable,  af- 
*'  fumed  and  promifed,"  &c. 

On  demurrer,,  this  declaratioB  was  adjudged 
to  be  ill. 

By  THE  Court. If  the  plaintiff  had  de- 
clared fimply,  on  the  defendant's  receiving  his 
money  to  his  ufe,  there  would  have  been  room 
for  an  implied  promrfe  to  re-pay  it ;  but  when 
the  declaration  goes  further,  and  expreffes  the 
money  to  have  been  received  to  account,  tliere 
is  no  ground  left  for  fuch  implication.  An  ac- 
tion of  account  being  brought  for  this  money, 
the  defendant  would  be  allowed  to  fhow,  that 
he  had"  laid  out,  or  expended  if,  according 
to  the  dire6lion  of  the  plaintiff;  but  as  the  ac- 
tion is  now   brought,    nothing  but  paying  the 

moncv 


Kinrman, 


County  of  Hartford,  Nov.  Term.  355 

money  to  the  plaintiff  can  be  a  performance  1     ^„gT^ 
For  apromife  to  pay,  and  a  promife  to  account,     =====3=^ 
are  fubftantially   different,  and  admit  a  differ-      Avery 
cnt  mode  of  trial,  iffue,  and  judgement.  t^-^-VI^.^ 

Law,  Chief  Juftic€y diXid  Judge  Ellsworth, 

iijjenting, This  is  an  implied  affampfit. — 

The  objeftion  to  the  declaration  is — That  there 
was  no  debt  to  raife  the  promife  :  For,  that  the 
receiving  the  plaintiff's  money  *'  to  his  ufe,  and 
"  to  account  with  him  therefor,*'  was  a  receiv- 
ing as  faclor,  to  lay  out  and  render  an  account 
of  the  profits.  The  words,  we  apprehend,  do 
not  import  this.  Where  fuch  is  the  receivings 
and  fuit  is  brought,  the  words  are,  ad  proficuTi^ 
duvi,  or  ad  merchandizandum  et  coviputandum. 
Receiving  money  to  the  ufe  of  another,  or  to 
account  with  him  for  it,  are,  in  common  under- 
flanding,  convertible  terms ;  and  where,  as  in. 
this  cafe,  both  are  ufed,  but  one  thing  is  in- 
tended, as  by  the  words  affumed  and  promifed. 
Receiving  money  generally  to  account  for,  or 
be  accountable,  without  more  faid  or  agreed, 
does  not  give  the  receiver  authority  to  mer- 
chandize with  it,  upon  the  account  and  rifk  of 
the  payor,  or  him  to  whofe  ufe  it  is  received, 
but  holds  him  chargeable  in  debt  for  it.  All 
our  book-debts  are  matters  of  account.  The 
articles  charged  are,  in  the  didion  of  the  (la- 
tute,  to  be  accounted  for,  and  are  fo  received  ; 
yet  debt  lies.  And  wherever  one  receives  mo- 
ney to  the  ufe  of  another,  he  is,  in  law  lan- 
guage and  common  parlance,  to  account  for  it ; 
(which  is  all  the  plaintiff  has  faid  here)  yet  m- 
debitatus  ajfmipfit  always  lies  in  fuch  cafe.  And 
this  being  an  equitable  action,  and  admitting 
equitable  grounds  of  defence,  the  defendant 
hath  advantage  under  the  general  iffue,  of  dif- 
counts  on  book,  or  offsets  againfl  other  fimple 
contra6t  debts  ;  which,  in  our  opinion,  is  all  the 
W  w  2  benefit 


3 5^  Co u  N  T  Y  o  y  H  A R  T  r  o R  D,  N a.v .  T e> m; 

=■==^3^  benefit  of  accounting  that  the  declaration,   iiv 

z==2=3^  this  cafe,  imports  him  entitled  to: Where- 

Avery  fore,   we  think  the  declaration,   though  infor- 

agamfi  x^^S•y  fubftantially  good. 
Kinfman. 


Lankton  againjl  Scott. 

ERROR  from  a  decree  of  the  court  of  com« 
mon  pleas,  fitting  as  a  court  of  chancery.. 
An  adion  had  been  brought  by  'L,ankion^ 
againft  Scott  and  his  wife^  for  fland^rous  words^ 
which  was  fubmitted  to  arbitrament. — — Scotl 
not  being  able  at  that  time  to  juftify  the  words 
fpoken,  a  fum  in  damages,  and  coil,  was  award- 
ed againft  him  ;  which  he  complied  with,  and 
executed  to  Lankton  his  promiffory  note^  for 
the  fum  awarded.— A  fuit  was  afterwards  com^* 
menced  on  that  note,  pending  which,^  Scott 
brought  his  petition,  dating — That  fince  the 
award  was  publiflied,  and  note  given,  Lankton 
had  been  deteQ.ed  in  an  attempt  upon  the  chaf- 
tity  of  one  Mrs.  Smith ;  in  confequence  of 
which,  he  confeifed,  in  the  prefence  of  feveral 
witnelles,  that  he  had  been  guilty  of  criminal 
commerce  with  one  Mrs.  J^<r)'io?2,  before  the  flan- 
derous  words  complained  of,  were  fpoken  by^ 
Scott's  -wife.;  and  that  neither  Scott  or  \{\s  wije 
had  (aid  any  thing  refpe6ting  his  criminal  con- 
ne6lion  with  vfaid  Mrs.  HeydoUy  but  what  was 
true :  That  he  had  been  guilty  of  great  injuftice 
in  profecuting  them  ;  and  that  the  ruin  of  his 
reputation  was  defervedly  the  fruit  of  his  own 
wicked  condu61,  and  not  caufed  by  any  evil  re- 
ports or  flander  of  Scott  or  hiswi/e^- The 

petition  was,  that  the  note  be  decreed  void. 

The  refpondcnt  took  two  exceptions,  by  ,way 
of  abatement: 

1.  Protefting 


.Scoct. 


GovHTY  OF'  Hartford,  Nov.  Term.  357 

1.  Pfotefting  that  the  fafts  allcdged  in  the  ^TgT 
petition,  are  matters  of /c^x^^fl?^/,  totally  unfound-  =:=^=^ 
ed,  and  only  calculated  to  difcredit  and  abufe  Lankton 
the  refpondent ;  and  therefore,  inadmiflible  in  %y"^ 
a  court  of  juftice. 

2.  That  there  were  not  fufficient  fafts  alledg- 
^d  for  the  interpofition  of  a  court  of  chancery. 

The  court  did  not  difmifs  the  petition;  but 
upon  an  examination  of  the  fads  alledged,  paf- 
fed  a  decree,  declaring  the  note  to  be  null  and 
void. 

In  affignment  of  error,  four  exceptions  were 
-ta^ken  to  this  decree  :  i  ^ 

1.  That  the  petition  contained  matters  of 
mere  fcandal,  not  neceffarily  conneded  with 
the  material  parts  of  it ;  and  ought,  by  law,  to 
have  been  difmifTed. 

2.  That  no  fads  were  alledged  fufficient  to 
found  any  decree  upon. 

3.  That  the  decree  doth  not  {late,  that  any 
of  the  fads  alledged  were  found  to  be  true,  but 
is  an  arbitrary  order,  totally  unprecedented,  and 
againft  law. 

4.  That  faid  court  have  undertaken  to  de- 
cree  a  note  of  hand  void,,  executed  for  a  va- 
luable confideration,  upon  the  moft  mature  de- 
liberation, without  any  compuHion,  miftake, 
accident,  or  fraud. 

The  decree  affirmed. 

By  the  whole  Court.— As  to  the  firfl 

exception — ^There  is,  indeed,  fcandalous,  mat- 
ter alledged,  and  it  would  have  been  ground 
of  abatement,  had  it  been  unconneded  with  the 
merits  of  the  caufe  ;  but  this  is  not  the  cafe. — 
The  folicitation  of  Mrs.  Smithy  the  only  part 
pf^the  narrative  that  creates  the  doubt,  was  not, 
indeed,  dired  evidence  of  the  criminal  conver- 
fation  with  Mrs.  Hey  don,  of  which  the  plaintiff 
in  error  had  been   before   charged;    but  it 

heightened 


Scott. 


358  CouNTV  OP  Hartford,  Nov.  Term, 

^Ts^    heightened  the  probability  of  the  truth  of  that 

=====3     charge  ;  and  his  acknowledgement  that  it  was 

Lankton     true,   and  of  his  criminal  intentions  toward? 

^g^f^^A     Mrs.  Smithy  were  parcel  of  the  fame  confeflion. 

2.  Exception  is,  that  the  fads  are  not  fuffi- 
-cient  to  form  a  decree  upon  : 

They  are — That  the  plaintiff  profecuted  at 
perfon  he  knew  to  be  innoc«nt,  but  whom^ 
through  his  fuppreflion  of  a  fad,  he  made  to 
appear  guilty,  and  finally  obtained  an  award 
againft  her  and  her  hufband  (the  defendants  in 
error)  for  20/.  15.  7^.  and  a  promiffory  note 
of  that  amount,  in  compliance  therewith  ;  after 
which,  it  fully  appeared  that  fhe  was  innocent^ 
by  his  own  confeflion.  The  note,  however, 
•was  iaed,  and /pending  the  fuit,  relief  ^as 
prayed. 

-The  award  and  note,  then,  were  unduly  and 
tmconfcionably  obtained;  and  thereisasftrong 
ground  for  relief  as  can  arife  from  the  difcove- 
ry  of  new  evidence.  An  award,  indeed,  is  not 
baftily  to  be  fet  afide  for  new  evidence,  nor  lb 
readily  as  a  judgement  at  law  ;  becaufe  arbi- 
traments are  defigned  fummarily  to  hnifh  con- 
troverfies,  and  becaufe  the  court  have  not  the 
fame  advantage  to  determine  how  far  the  evi- 
dence is  new  or  material,  or  how  far  there  has 
been  a  failure  of  juftice,  with  regard  to  awards, 
as  with  regard  to  judgements  on  trials  had  be- 
fore themfelves  ;  and  becaufe  alfo,  in  the  lat- 
ter cafe,  they  may  referve  the  confideration  of 
the  back  cofts  till  the  merits  of  the  caufe  ftiall 
be  farther  difcufled  upon  the  new  trial :  Yet 
the  new  evidence  may  be  fo  decifive,  and  have 
been  fo  fuppreifed  by  the  adverfe  party,  that 
the  award,  though  binding  at  law,  ought  to  be 

relieved  againft  in  equity. In  this  cafe,  it 

totally  removes  the  ground  on  which  the  ar- 
bitrators muft  have  gone,  and  the  equity  of  the 

award  ; 


County  of  Hartford,  Nov.  Term.  359 

award ;  and  charges  the  failure  of  the  defen-     ^"^87! 
dants  at  the  trial,  not  on  their  own  negligence,     ===^ 
but  the  unconfcionable  proceedings,    and  fup-    Lankton 
preifion  of  the  truth,  by  the  plaintiff.  There  wa?^     agahj^ 
therefore,  fufficient  ground  for  equity  to  inter-       ^°^'' 
pofe.   1  Atk,  64.  And  as  the  note  was  given  in 
obedience  to  the  award,  and  to  fecure  the  pay- 
nient  of  the  money  awarded,  to  extend  relief  to 
that. 

3.  An  exception  is  taken  to  the  form  of  the 
decree,  it  being,  that  the  note  fhall  be  voidyScz. 

A  decree  cannot  transfer  a  title  to  real  ef- 
tate,  becaufe  incompatible  with  the  mode  of 
transfer  prefcribed  by  ftatute,  and  the  evidence 
and  fecurity  of  titles  thereby  provided  for  : — • 
But  there  is  no  reafon  why  it  may  not  exone- 
rate a  perfon  of  a  promife,  or  difcharge  him  of 
a  debt,  as  the  granting  a  new  trial  doth  of  a  , 

judgement  or  an  execution;  and  it  will  be  as  * 

high  evidence  of  the  difcharge,  as  a  note  can  be 

of  the  contrad. Decreeing  the  note  void,  r- 

or  \ht  promijfor  difcharged  from  it,  is  more  fpe~  7~ 

cific  relief,  and  more  fimple  and  certain,  than 

to  enjoin  the  promiJJ'ee  to  cancel  or  deliver  it 

up  under  a  penalty ;  becaufe  then  another  fuit 

may  be  neceflary  for  the  penalty,  and,  in  cafe 

of  poverty  or  avoidance,    may  be  fruitlefs.— - 

There  is  not  that  danger  here  from  fuffering 

the  note  to  remain  in  the  hands  of  the  prom  if- 

fee  as  in  England,  where  notes  are  negotiable. 

As  to  the  forms  ufed  in  this  ftate,   they  have 

been  both  ways ;  and  either  may  be  good,  at  the 

difcretion  of  the  court,  as  the  particular  circum- 

ftances  of  the  cafe  may  require.     Proceedings 

in  theEnglifii  court  of  chancery  have  been  more 

formal  than  in  ours;  but  there  the  practice  hath 

varied  in pointofforms,efpecia]ly  oflatter  years, 

in  order  to  render  the  execution  of  their  decrees 

more  fpeedy  and  cffeftual.      Gilb*  Court  Chan, 

tit.  Decree,  4.  As 


360  County  or  Hartford,  Nov.  Term. 

*^TgT^         4.  As  to  the  remaining  exception,   that  the 

«===i     decree  doth  not  find  the  fads  alledged  : 

Lankton         It  counts  upon  themjiand  a  "  full  hearing 

againft     "  and  due  confideration'*  of  them,  as  the  ground 

Scou*      of  the  decree;  And  the  intendment,  which  is 

always  in  fupport  of  judgements  and  decrees, 

muft  be,  that  the  fa6ls  were  proved,  or  admitted 

to  be  true. -We  are,  therefore,  of  opinion, 

that  there  is  no  error  upon  either  of  the  points 
ftated. 


County  OF  Tolland,  January  Term.  361 


B  ABC  DC  K  againjl  Janes. 


ties. 


ERROR  from  the  court  of  commom  pleas,  a  cafe  being 
Janes  brought  his  a6tion  of  trefpafs  againft  caSon  the 
Babcccky  to  the  court  of  common  pleas,  which  firftuay  of 
was  regularly  entered  in    the  docket   of  the  anVno^l'p- 
court ; — r-nd  on  the  iirft  day  of  the  term,  at  the  rearanceof 
calling  of  the  aBions,  this  cafe  was  three  times  i^  cannot  be 
publicly  called,  but  neither  party  appeared  \ — "  af  er^ard 
fo  the  a6lion  was  called  out  of  the  docket.- —  by^confcnc 
Afterwards,  on  the  fecond  day  of  the  term,   at  ^f^^"®*^^  P^^' 
ihe  opening  in  the  afternoon,   the  plaintiff  ap- 
peared, and  moved  for  a  revival  of  the  a6lion, 
without  the  knowledge  or  confent  of  the  de- 
fendant;  v;hich  was  granted  by  the  court,  and 
the  cafe  opened  for  further  proceeding. — ■ — 
The  defendant  being  informed  of  the  order  of 
court,  appeared,  and  protefled  againft  the  de- 
.termination,   and  lodged  his  bill  of  exceptions  on 
file,  certified  by  the  Judge. — Judgement  was  af- 
terwards rendered  againft  him  n^ou  nihil  dicit. 
In   this  judgement  feveral  errors  were  com- 
plained of;    but  on  the  point  ftated  in  the  bill 
.oj  exceptions^  the  judgement  was  reverfed. 

By    the    whole    Court.— The   parties 

being  three  times  publicly  called  on^the  firft 
day  of  the  court's  fitting,  and  not  appearing, 
the  a6iion  was  difcontinued,.  and  could  not  be 
revived  on  the  next  day,  confiftent  with  the 
ftatute,  in  fuch  cafe  provided,  without  the  coa^ 
fent  of  both  parties. 


Sco 


TT 


362  County  or  Tollani>,  Janitary  Term* 

Scott  and  Wirz^^ Petition  in  Error, 

tifti  prTecu-  T  TPON  complaint  o?z  grand  juror,  Scott^ni 
^e'eVidence  ^^  ^^^  ^^^^  Were  brought  before  a  Jujlice  of 
isnociuHfici-  the  PeacCy  ^ov  perjury. — Upon  enquiry  into  the 
thl^tc^ct  ground  of  complaint,  the  Juftice  did  not  find 
perfoiito  «  fufficient  evidence  of  the  fa8:  to  hokl  them  to 
acou'^tof  *  trial  before  a  court  of  competent  jurifdi^tion^ 
compttcne  but  difmiffed  them,  and  fentenced  them  to  the 
jie^isnoui"-'  paynicut  of  coft ;  for  which  he  ifTued  execution 
auicwf«y    againfl  each. 

-  To  this  decifion  of  the  Jujlice,  three  excep- 

tions were  taken  : — 

1.  That  they  having  been  found  innocent  of 
the  crime,  no  coft  could  by  law  be  taxed  againft 
them. 

2.  That  the  Juftice  taxed  10^.  for  written 
affidavits,  improved  in  the  examination  of  the 
caufe  before  him;  whereas,  it  being  a  criminal 
|)rofecution,  they  were  inadmiffible  by  law,  and 
ought  not,  by  any  rule,  to  have  been  taxed. 

3.  That  execution  ought  not,  by  law,  to  have 
iffued  againft  the  wife  feparate  from  her  huf- 
band,  in  a  matter  of  a  mere  pecuniary  nature. 

On  the  ground  of  the  firft  exception,  the 
judgement  was  reverfed. 

By   the    whole  Court. The   Jfu/lice 

not  having  authority  to  try  and  determine  the 
caufe,  had  no  authority  to  give  judgement  for 
the  payment  of  coft  ;  and  in  cafe,  where  the 
evidence  is  not  fufficient  to  fubjeO:  the  perfon 
accufed  to  trial,  the  law  doth  not  fubje6l  hinft 
to  the  payment  of  coft. 


Scott 


CoVNTY  OF  Tolland,  jANUiTRY  Term.  363 

Scott  as:ain[l  Scripture.  'Z 

°     -^  Scott 

ERROR  from  the  jadgement  of  a  Jujlice  of  againft 
.  Me  Peace.-— 5'cr2//iter^broug4it  his  aaion  Scripture, 
before  Mr.  HolmeSy  a  Juftice  of  the  Peace,  de- 
claring— That  for  a  valuable  confideration  re« 
ceived  and  accepted  by  Scott^  in  full  of  all  de- 
mands againft  Scripture,  faid  ScoU  did  agree  and 
engage  to  relinquifh  and  difcharge  him  of  eve- 
ry demand  whatever;  but  that  afterwards  he 
brought  his  a6lion  of  book-debt  before  Jere- 
miah Wejiy  Efq.  and  recovered  the  whole  of  his 
demand,  in  dire61;  violation  of  his  agreement. 

To  which  declaration  Scott  pleaded — That 
on  the  trial  before  Jujlice  Wejl,  faid  Scripture 
appeared,  and  exhibited  as  a  charge  on  book^„ 
the  articles  which  he  claimed  to  have  delivered 
as  the  confideration  of  faid  agreement,  and  the 
fame  was  allowed  by  faid  Juftice  Wef,  in  oppo- 
fition  to  faid  Scott's  account,  and  difcounted 
thereon,  by  the  judgement  and  determination 
of  faid  Juftice. 

To  which  there  was  a  demurrer,  and  joinder 
in  demurrer;  and  judgement   by  ihe   Jitfice^., 
was  for  the  plaintiff  in  the  aBion. 

judgement  of  the  Juftice  reverfed. 

By  the  Court.- The  agreement  ftated 

in  the  declaration,  if  of  any  validity,  could  on- 
ly have  been  taken  advantage  of  in  the  aclioii 
before  Jujlice  Wejl,  by  pleading  it  in  bar,  by 
way  of  difcharge,  ot  accord  and  fatisfa^ion  j 
but  as  the  article  alledged  to  be  the  confidera- 
tion of  faid  agreement  was  exhibited,  and  al- 
lowed in  part  payment  of  faid  Scott's  demand, 
Scripture  could  not  legally  take  any  further  be- 
nefit by  the  agreement. 


X  X  2  Rust 


3^4 


County  oj  Tolland,  January  Term. 


1^88. 

Ruft 
againji 
Wilfon. 


Rust  <^^^/;2/Z  Wilson. 

ACTION  on  promiffory  note. The  de- 
fendant pleaded — That  the  note  was  given 
to  compel  obedience  to  the  award  of  arbitra- 
tors to  be  made,  relative  to  certain  controver*. 
fies  then  fubfifting  ;  and  that  it  was  given  for 
no  other  caufe  or  confideration  ;  and  that  faid 
arbitrators  did  not  make  any  award  in  the  pre- 
mifes. 

The  plaintiff  replied,  fetting  forth  the  follow- 
ing award  : — "  That  faid  Rujl  recover  of  faid 
"  Wilfon  the  fum  of  ii/.  12s.  6'i.  lawful  money, 
**  damage  and  coft,  in  full  fatisfa6lion  of  the 
"  matters  fubmitted ;  and  that  they  execute 
"  difcharges  each  to  the  other  accordingly.*' 

To  which  there  was  a  demurrer,  and  joinder' 
in  demurrer  ;  and  the  only  exception  was,  that 
the  replication  did  not  Hate  a  performance  on 
the  part  of  the  plaintiff.  But, 

By  the  whole  Court. — ^ — The  fhewing 
a  good  award  is  a  full  and  fufficient  anfwer  to 
the  plea;  and  the  defendant  cannot  be  admit- 
ted to  depart  from  his  plea,  by  relying  on  ano- 
ther matter  repugnant  thereto. 


A  written 
ag'eemenc 
refpcding  a 
roce,  enter- 
ed i  to  at  the 
time  ihe 
nore  is 
given, 
•hough  it  be 
not  annex- 
ed, -s  to  be 
confideed 
In  nature  cf 
aco'  dition. 
Alf «,  an  ap- 
peal Co  in 
adjdurncd 
couic.  is  not 


Fellows  againji  Carpenter. 

ERROR  from  the  judgement  of  a  Juftice  of 
the  Peace,  and  from  a  fubfequent  one  of 

the  common  pleas,    difmiffing  an  appeal. 

Carpenter,  being  adminiftrator  on  the  eltate  of 
Jeremiah  Utley,  deceafed,  brought  his  action 
againft  Fellows,  on  a  promiffory  note,  given  to 
the  deceafed,  for  the  fum  of  5/. "payable  in  the 
year  1785. To  which  the  defendant  plead- 
ed— 


County  of  Tolland,  January  Term.  365 

cd— That  at  the  time  of  giving  and  executing     "^Tfl^ 
faid  note,  the  faid  Utley  entered  into  an  agree-     =i^==5 
ment  with  the  defendant,  which  was  in  v/riting.     Fellows 
and  duly  executed,  in  the  following  words,  viz'.      ^-ga^'V^ 
"  This  agreement,  made  by  Jeremiah  Utleyy  on  *-^^T«^^'"^ 
*^  the  one  part,  and  Ifaac  Fellows  on  the  other, 

'*  witnelietr. -That  wh^rcdiS   Elizabeth  Utley     - 

**  did,  in  the  month  of  May,  1783,  before  Mo/es 
"  HolmeSy  Efq.  make  oath,  that  fhe  w^as  preg- 
*'  nant  by  the  faid  Fellows  :  And  the  faid  i^e/- 
^^  lovjs  hath  given  four  notes  to  the  faid  Jere-^ 
•'^  niiah  Utky,  of  hve  pounds  each  ;  one  of  faid 
*'  notes  to  be  paid  in  the  year  1784,  provided 
"  faid  child  live  one  year  from  its  birth  ;  and 
"  five  pounds  to  be  paid  in  the  year  17B5,  if 
*^  the  child  live  two  years  from  its  birth  ;  and 
*'  five  pounds  to  be  paid  in  the  year  1786,  if 
"  the  child  live  three  years  from  its  birth  ;  and 
*'  five  pounds  to  be  paid  in  the  year  1787,  if  the 
"  child  live  four  years  from  its  birth.-— Arjd  if 
"  faid  child  (liould  not  live  out  all  or  any  of  the 
*^  years  here  mentioned,  the  faid  Utley -promKes 
"  to  give  the  faid  four  notes  up  to  the  faid  Fel- 
"  lows^  and  they  are  to  be  null  and  void,'* — — - 
And  that  the  child  mentioned  in  faid  agreement 
did  not  live  out  two  years  from  its  birth,  but 
died- a  confiderable  time  before  the  expiration 
of  faid  two  years;  by  means  whereof  faid  note 
became  void. 

To  this  there  was  a  demurrer,  and  joinder 
in  demurrer;  and  judgement  was,  by  the  Juf- 
tice  rendered  for  the  plaintiff,  to  recover  the 
fum  of  3/.  155.  4  J. 

An  appeal  was  taken  to  tire  court  of  common 
pleas,  holden  by  adjournment  :  And  before  th^ 
court  of  common  pleas,  it  was  objected — That 
the  appeal  was  irregular,  and  not  fuftainable, 
being  taken  to  an  adjourned  court,   when  it 

ought 


Carpenter 


366  CouKTY  OF  ToLLA5<r>,  Januarv  Term. 

"^i^lr    ^"g^^  ^^  ^^v^  ^c^"  ^^  ^^^e  »ext  dated  feffionof 
=;===     faid  court. — And  the  appeal  was  difmiffed. 

Fellows         On  the  writ  of  error  three  points  were  eon- 

™i!^«     tended  by  the  counfel  : — 

1.  That  the  agreement  recited  in  the  plead- 
ings was  not  annexed  to  the  note  ;  therefore,, 
could  not  operate  as  a  condition,  but  muft  be 
taken  advantage  of  by  a  feparate  fuit. 

2.  That  the  agreement  makes  no  provifion 
for  parts  of  years,  but  only  provides,  that  the 
notes  fhould  be  void,  if  the  child  fhould  not 
live  to  the  expiration  of  each  year;  and  there^ 
fore,  there  was  no  foundation  for  the  plaintiff 
to  recover  for  fuch  part  of  the  year  as  the  child 
did  live, 

3.  That  the  court  of  common  pleas  ought  to 
have  fuftained  the  appeal ;  for  that  adjourned 
feifions  of  court  are  confidered  in  law  as  ftated 
terms,  for  the  purpofe  of  bringing  forward  nev/ 
fiiits,  and  entering  appeals  from  lower  courts. 

Judgement  of  the  Juftice  and  common  pleas 
affirmed. 

By  THE  Court. The  note  declared  on, 

was  in  fa6l  given  to  fee u re  the  fecond  year's 
iTiaintainance  of  a  baftard  child  ;  and  the  writ- 
ten agreement  eiitered  into  at  the  fame   time>. 
in  nature  of  a  condition  to  th^  note,  as  fet  forth 
in  the  plea  in  bar,  though  inaccurately  expreff-  * 
ed,  amounted  to  no  more  than,  that  if  the  child 
iliould  die  before  the  year  commenced,  nothing 
Ihould  be  paid  on  the  note  ;  or  if  within  the 
year,   only  a   fum  proportioned  to  the  time  it 
Ihould  live  ; — the  child  lived  a  part  of  the  year,.  ] 
and  for  ought  that  appears,  the  damage  affeffed  ' 
upon  the  note  were  in  due  proportion  thereto. 

As  to  the  appeal  taken  to  the  adjourned 
court  of  common  pleas,  it  did  not  lie. — The 
words  of  the  ftatute  granting  appeals  are,  "  to 
•*  the  next  county  courts*'  which  has  reference 

*  t0 


County  of  Tolland,  January  Term.  367 

to  the  n^xijlated  term,  and  not  to  an  adjourn-     ^^88^ 
ed  feffion,  which  is  properly  but  a  continuation     ==~=3 
of  a  term ;  and  fo  hath  invariably  been  the    Fellows 
pradice  upon  the  ftatute.  ^gf^^^fi 

Judge  Dyer,  dipnting. 1    fully  agree,  ^^^^-pen^er 

that  the  written  agreement  entered  into  be- 
tween the  parties,  is  to  be  confidered  as  a  Con- 
dition to  the  note  declared  upon,  and  muft  guide 
and  dire6:  its  operation  ;  But  we  are  not  to 
make  agreements  for  the  parties,  or  fo  to  con- 
ftrue  thofe  which  they  have  made,  as  totally  to 
vary  them  from  the  plain  letter  and  expreffion. 
The  duty  arifing  on  each  of  the  notes  refered 
to,  is  exprefsly  on  the  child's  living  each  entire 
year ;  and  the  note  in  fuit  was  not  to  become 
obligatory,  unlefs  the  child  lived  two  years 
from  its  birth  ;  which  is  a  condition  precedent. 
If  it  was  the  intention  of  the  parties  to  appor- 
tion either  year,  and  divide  it  into  parts,  as  the 
child  might  live,  there  are  apt  words  to  exprefs 
it ;  but  in  this  agreement,  an  entire  year  is  ex- 
preflTed,  and  we  cannot  divide  and  apportion  it 
diflPerent  from  the  contraft.  The  law  favours 
no  fuch  conftru6tion,  nor  does  it  admit  of  an 
apportionment  on  an  entire  contract.  As  in 
cafe  of  rent  on  a  leafe  for  years,  the  rent  to  be 
paid  annually,  and  the  leffee  is  evitled  withiii 
any  given  year,  the  rent  for  that  year  is  not  re- 
coverable ;  nor  can  it  be  apportioned  for  that 
part  of  the  time  which  he  occupied.- — Where 
the  confideration  is  one,  and  the  debt  one,  it 
cannot  be  divided.  1  Salk,  65.-3  ^^^^'  ^5Z- 
10  CokCy  128.-1  P.  Wms,  392. 


Bacon 


368  County  of  Middlesex,  January  T£RM. 

^  Bacon  aprainli  Taylor. 

Eacon        ^      *^ 

againji  HT^HIS  was  an  a6lion  of  cje6lment,  to  reco- 
Taylor.       J^     ver  the  poffeffion   of  certain  lands  de- 

fcribed  in  the  declaration. The  defendant 

pleaded — That  the  only  title  and  claim  of  the 
plaintiff,  was  founded  on  a  certain  deed  from 
one  Nathaniel  Corn-well^  of  Middletown  ;  in  and 
by  which  deed,  the  faid  Cornwell^  for,  and  in 
confideration  of  the  love,  good  will,  and  affec- 
tion, which  he  bore  to  his  neicey  Abigail  Taylor, 
wife  Oi  Jofeph  Taylor  (the  defendant)  d'd  give 
and  grant  to  Jeremiah  Bacon  (thQ  plaintiff)  and 
to  his  heiri  and  afTigns,  the  lands  demanded,  to 
hold  in  trujl,  for  the  i^^'id  Abigail  Taylor,  dur- 
ing the  term  of  her  natural  life  ;  and  after  her 
deceafe,  in  trujly  for  the  children  born,  or  to  be 
born  of  the  faid  Abigail,  and  to  their  heirs  arid 
affighs,  forever:  And  that  the  faid  Abigail  is 
deceafed,  leaving  children  of  her  body,  by  the 
defendant,  viz.  Jeremiah,  John,  Jofeph,  and 
Abigail:  That  faid  children  are  all  rumors; 
and  that  the  defendant,  their  father,  is  the  legal 
guardian  to  faid  minors,  and  in  their  behalf, 
and  as  guardian,  is  in  pofi'effion  of  the  land  de- 
manded, and  holds  the  fame  in  their  right. 

To  which  there  was  a  demurrer,  and  joinder 
in  demurrer. 

Two  queflions  were  made  in  this  cafe: — 

1.  What  eftate  is  veiled  in  the  children  of 
faid  Abigail  ? 

2.  Whether  the  defendant,  as  guardian  to 
faid  children,  has  the  right  of  poifeifion  during 
their  minority  ?  And, 

By   the   Court. As    to   the   firft,    w^e 

are  clearly  of  opinion — that,  notwithflanding 
the  words  of  the  deed  are  exprefFive  of  a  grant 
to  Bajcon,  his  heirs  and  afTigns,  yet,  as  it  is  in 

trufl 


County  of  Middlesex,  January  Term.  369 

truft  for  Abigail  Taylor^  her  children,  their  "^{T^^ 
heirs  and  affigns,  forever,  the  whole  eftate  is  ==a^^ 
veiled  in  the  children  of  Abigail,  in  fee.  Bacon. 

The  original  of  ufes,  was  from  the  civil  law,  ff^'J"-^ 
which  allows  a  ufe  different  from  the  thing  it-  ^^  ^^' 
feif;  and  was  introduced  and  fupported  by  the 
clergy,  to  avoid  the  ftatute  of  Mortmain.  It 
had  no  legal  foundation,  but  in  fad  was  found- 
ed in  fear  and  fraud,  and  was  fupported  by  the 
Judges  in  Chancery,  who  were  at  that  day  ge- 
nerally clergymen  ;  and  were  very  ready  to 
adopt  any  metkod  to  avoid  a  ftatute  which  de- 
prived them  of  fuch  emoluments  and  influence. 
Eac.  Abrid,  tit,  Ufes. — It  was  confidered  the 
cejliii  que  ufe^  had  neither  jw-i  in  re^  nor  ad  rem  ; 
and  if  the  triijiee  broke  his  truft,  there  was  no 
legal  remedy  againft  him,  but  an  application 
muft  be  made  to  chancery,  and  then  not  allow- 
able againft  his  heir.  Neither  the  truftee,  nor 
him  to  whofe  ufe,  could  forfeit ;  nor  could  the 
eftate  be  extended  againft  one  or  the  other  ^ 
and  was  therefore  efteemed  to  be  againft  the 
policy  of  law.— Several  ftatutes  were  found  ne-. 
cefTary  to  remedy  the  many  inconveniences 
which  attended  fuch  conveyances — Vide  Stat. 
Rich.  III.  cap.  1.  And  'finally,  the  ftat.  17, 
Hen.  VIII.  was  paffed^  whereby  the  whole  eftate 
was  vefted  in  the  cejlui  que  ufe^  which  fettled 
the  law  refpeBing  that  kind  of  conveyances. — 
And  this  was  the  law  and  idea  of  our  progenia 
tors,  when  they  emigrated  to  this  country; — 
and  for  our  courts  to  eftablifti  the  doBrine  of 
ufes  here,  which  would  necefTarily  require  a 
number  of  ilatutes  to  rem.edy  the  inconveni- 
ences refulting  from  fuch  praclice,  can  be  nei- 
ther wife  or  prudent. 

The  zhW^v tn  of  Abigail y  having  an  abfolute 
eftate  in  the  lands  in  queftion,  the  poireiTioii 
follows  the  ufe  5  "and  the  plaintiff  being  dhly  a  '     * 

Y  y  trerc 


370  County  of  Middlesex,  January  Term. 

""itSST     "1^^^  nominal  perfon  in  the  deed,  and  no  con- 

s=,:^^==     fideration  arifing  from  him,  he  is  confidered  as 

Bacon      having  no  legal  eftate  in  the  premifes,  by  which 

againji     j^g  ^^j^  recover  the  poffeffion  from  the  defen- 

*^'  ^^'     dant,  who,  as  guardian  to  the  children,  in  their 

right,  may  lawfully  hold  the  pofTelfion. 

Sherman  <27ii  Ellsworth,  Judges,  dijfent' 

ing. It  appears  manifeftly  to  us,    to  have 

been  the  intent  of  the  grantor  of  the  lands  in 
queftion,  to  veft  the  legal  title  in  the  plaintiff, 
fubjecl  to  a  truft,  for  the  purpofes  mentioned 
in  the  deed;  which  intent  fhc^ld  take  effect, 
unlefs  it  be  againft  law. 

By  the  common  law  of  England,  feoffments 
in  trull  clearly  veiled  the  legal  title  in  the  feof- 
fee,   and  an  equitable  right  or  lien  only  in  the 
cejlui  que  truft y  until  the  ftatute  of  27  Hen.  VIII. 
called  the,  Statute  of  Ufes;  which  flatute  was 
made  to  remedy  particular  inconveniences  that 
cannot  happen  in  this  ftate ;  of  which  the  prin- 
cipal one  was,  that  the  ftatute  of  Mortmain  was 
liable  to  be  defeated  ; — another,  that  the  Lord 
ioft  his  wardfliip,  reliefs,  marriages,  and  efcheats ; 
a  third  was,  that  as  eftates  pafled  by  way  of 
ufe,  from  one  to  another,  by  bare  words,  with- 
out any  foiemn  ceremony,    or  record  of  the 
tranfa8:ions,  purchafers,   and  others,   that  had 
right,  were impofed  on. — Other  inconveniences 
were  alfo  enumerated  in  the  preamble,  which 
are  fince  obviated  by  a  more  enlightened  courfe 
>  of  practice  in  the  courts  of  chancery,  who,  for 
near  a  century,   have  uniformly  decided — that 
the  truft  defcends,  may  be  aliened,  is  liable  to 
debts,   to  forfeiture,  and  even   to  the  curtefy 
of  the  hufband ; — by  which  means,  as  Judge 
Blackjlone  obferves  (2  Com.  337.)  "  Trufts  are 
"  made  to  anfwer  in  general,  all  the  beneficial 
"  ends  of  ufes,  without  their  inconveniences  or 
"  frauds." — Inoperative  here,   therefore,  are 

the 


County  of  Middlesex,  January  Term,  371 

the  reafons  for  the  Statute  of  Ufes ;  a  ftatute,     ^"^33^ 
indeed,  which  never  had  an  efFe6i;  in  England^     ==r~r; 
to  prevent  the  creation  of  truft  eftates,  but  on-      Bacon 
]y  to  fubftitute  the  term  t7'ii/i  for  nfe^  and  vary      ^g^^^^jf 
a  little  the  form  of  words  by  which  the  trufl  is     -^^y^*^'"- 
raifed,    fo  as  to  exprefs  a  ufe  upon  a  ufe,  or  a 
yfe  upon  a  term  of  any  length  ;  or  that  the  fe- 
offee is  to  pay  over  the  profits. — So  expreifed, 
the  feoffee  flill  holds  the  legal  eftate^  and  the  cff- 
tui  que  triijl  hath  his  remedy  only  in  chancery, 
(Vide  Bac,  Ahrid.  tit.  Ufes-— and  2  Black,  Com, 
327 — ■337-)" — Thus  ftands  the  common  law  oi 
England,   upon  the  dotfrine  of  trufts  ;  which 
w^e  do  not  think  to  be  unreafonable,  or  repug- 
nant to  any  principle  or  decifion  of  our  own. 

As  to  the  right  of  a  donor  to  create  a  truft— 
Why  may  he  not,  who  is  admitted  a  right  to 
give  his  eftate  abfolutely  to  whom  he  pleafes, 
give  it,  fubjeft  to  a  truft,  or  an  equitable  lien, 
for  the  benefit  of  a  perfon  or  perfons  whom  he 
wifties,  and  it  may  be  his  duty  to  provide  for; 
but-  not  to  entruft  with  the  difpofal  or  manage- 
ment of  the  whole  eftate  ?  And  v>^here  is  the 
danger  of  fraud  or  impofition,  when  all  the  in- 
tereft  that  any  one  hath  in  the  eftate  appears  of 
record,  as  muft  be  the  cafe  here;  and  is  fub- 
jeB:  in  law  or  equity  to  all  reafonable  duties 
and  difpofitions  ?  If,  under  any  circumftances, 
it  becomes  reafonable,  that  the  feoffee  ihould 
transfer  the  poiTeffion,  or  even  the  fee,  to  the 
cejlui  que  trujl^  and  he  refufes  to  do  if,  a  court 
of  chancery  may  compel  him,  taking  care,  at 
the  fame  tim.e,  that  equity  be  done  to  him  alfo; 
and  that  he  be  reimburfed  his  charges  incurred 
for  the  benefit  of  the  truft,  as  in  repairs,  taxes, 
or  otherwife. 

It  is  therefore,  our  opinion,  that  the  plain- 
tiff in  this  cafe,   hath  the  legal  eftate  in  him, 

and 
Yyg 


372  County  of  Middlesex,  January  Term. 

^^iTsT,  ^"^  ^'S^^  ^^  '^"^^  ^^  recover  and  hold  the  pof- 

^s==*^  feffion,  until  a  court  of  chancery,,  upon  the 

Bacon  whole  circumftances  of  the  cafe,  (ball  other- 

*/'»'«/  wife  order  and  decree. 

Taylor. 


Bacok 


County  of  Litchfield,  Feb.  Term.  373 

Bacon  againjl  Fitch.  ^ 

ACTION  for  a  non-feazance  in  the  office  of  ^S^^'if^ 
fheriff. — The  declaration  was — That  the 
defendant  received  of  the  plaintiff,  a  certain 
writ  of  execution,  which  iflued  upon  a  judge- 
ment of  the  court  of  common  pleas  in  the  coun- 
ty of  Litchfield,  in  favour  of  the  plaintiff,  again  ft 
one  Ifaacs;  which  execution  bore  date  the  12th 
day  of  November,  1776,  and  was  made  return- 
able in  fixty  days  :  That  the  defendant  received 
the  fame  as  fheriff,  to  execute  according  to  law^ 
which  he  wholly  negleQed  to  do.  Sec. 

Plea. — That  the  defendant  received  faid  ex- 
ecution, to  conduct:  in  the  moft  advantageous 
manner  for  the  plaintiff,  and  with  as  little  ex- 
pence  to  him  as  pofTibie  :  That  he  was  not  to 
levy  on  the  body  of  faid  Ifaacs  without  parti- 
cular orders  from  the  plaintiff;  and  that  Ifaacs 
was,  foon  after,  by  order  of  the  General  Affem- 
bly  of  this  ftate,  fent  out  of  the  defendant's  baL 
liwic,  and  prohibited  from  returning,  till  about 
the  month  of  January,  1778  ;  and  that  it  was 
not  in  the  power  of  the  defendant  to  have  levi- 
ed faid  execution,  either  on  the  body  or  pro- 
perty of  Ifaacs,  until  the  return  day  had  ex- 
pired :  That  the  plaintiff  then  gave  orders  to 
the  defendant  to  receive  continental  currency 
in  fatisfadion,  which  he  fome  time  after  did, 
and  gave  immediate  notice  thereof  to  the 
plaintiff,  and  endorfed  the  execution  fatisfied, 
and  returned  it  to  the  office  from  whence  it  if- 
fued :  That  the  plaintiff  did  not  apply  to  receive 
faid  money,  and  the  defendant  afterwards  ten- 
dered the  fame  to  him,  which  he  refufed  to  ac- 
cept. 

To  this  plea  there  was  a  demurrer,  and  join- 
der in  demurrer. 

Under 


374  County  of  Litchfield,  Feb.  Term. 

~~og^         Under  the  demurrer,  it  was  objefted — That 
T=l — 1     the  plea  did  not  fet  forth  with  fufficient  cer- 
Bacon      tainty,   the  terms  on  which  the  defendant  re- 
Gga:n^     ceived  the  execution;  and  that  it  contained  no 
Fitcli.      pofitive  averment  that  eftate  could  not  be  found 
before  the  return  day,   or  any  fufficient  reafon 
fhown  why  return  was  not  made  ;    for  the  re- 
moval of  the  debtor^s  perfon  out  of  the  defen- 
dant's  bailiwic,   could  not  operate  to  prevent 
the  debtor's  eftate  from  being  taken  in  execu- 
tion :  That  the  fubfequent  orders  of  Bacouy  for 
the  defendant  to  receive  continental  bills^  did  not 
purge  the  antecedent  wrong ;  for  that,  from  the 
.  allegations  in  the  plea,  no  more  could  be  infer- 

,  ed,  than,  i\\2iX' Bacon  agreed  to  accept  continen- 
^,  tal  money,   if  immediately  colle6:ed;  but  that, 

by  the  averment  of  fome  time  aftei\  it  did  not 
.appear  when  the  money  was  collected,  whether 
within  a  reafonable  time  or  not:  That  by  the 
ftatute  or  this  ftate,  the  damages  which  may  be 
recovered  againft  an  officer,  for  negligence  in 
his  office,  are  uncertain;  and  therefore  a  ten- 
der is  no  good  plea  in  fuch  cafe. 
Plea  adjudged  fufficient. 
By  the  whole  Court.— — It  appears  by 
the  plea — That  the.  defendant  received  the  ex- 
ecution under  certain  reftridions,  to  conduct 
in  the  mod  advantageous  manner  for  the  plain- 
tiff, and  with  as  little  expence  to  him  as  poffi- 
ble  ;  and  that  he  had  no  opportunity  to  levy  on 
the  perfon  or  eftate  of  the  debtor,  till  after  the 
return  day  was  paft.  If  he  had  returned  the 
execution,  with  a  non  eft  inventus  endorfed,  it 
would  have  occafioned  ufelefs  expence  to  the 
plaintiff,  and  would  have  been  contrary  to  his 
inftrudions  ; — therefore,  we  think  that  a  fuffi- 
cient excufe  for  not  doing  it, — The  other  mat- 
ters alledged  in  the  plea,  are  expreffive  of  what 
was  the  further  underftanding  of  the  parties, 

refpe8:ing 


County  of  Litchfield,  Feb.  Tekm.  375 

refpeding  the  terms  on  which  the  defendant  "^Tgg"* 

received  and  held  the  execution  ;  and  that  he  r- — C~ 

condutled  with  it  fairly,  reafonably,  and  agree-  Bacon 

ably  to  the  orders  of  the  plaintiff;  and  that  the  againji 

lofs,  which  happened  by  the  depreciation  of  the  J^^^^^^' 
continental  bills  of  credit,   was  occaiioned  by 
the  plaintiff's  negleB;  to  receive  them. 
So  judgement  v/as  for  the  defendant. 


Stro 


N<i 


QjS  County  op  Fairfield,  Feb.  Term, 

Strong  againjl  Barlow. 

^^l^^l^^^'^  TT  ^^^^  ^'^^"^  ^^^  ^^"^^  of  common  pleas. — 

an  a/co'd-    L  J  Barlow  brought  his  a6lion  againft  Strong, 

h^n-Ct"vk  hy  foreign  attachment;  who  not  being  an  inha- 

vith^'afa-      bitant  of  this  ftate,  it  was  ferved  upon  one  jfa^ 

talhmVnr,     ^^^  Barlozo,   as  his  attorney,  fa6lor,   ag-ent  and 

cannot  be      truftee,  to  fecure  the  effects  of  a  debt  due  from 

defend  in  the  him  to  Strong. — By  the  ftatute  refpe6ting  ab- 

aaion,  orca  fcondiug  debtors,  it  is  ena6led — "  That  fuch  at- 

p^e^venra'     "  torney,  fador,  agent,  or  truftee,  upon  his  de- 

condim.nce  "fire,   fliall  be  admitted  to  defend  his  princi- 

P  efs  auch-  "  pal  in  fuch  fuit,  throug^li  the  courfe  of  law,  ac- 

nryfr^nuhc  <c  cordiug  to  the  uaturc  of  the  a^ion.     But  if 

"  the  debtor  be  not  in  this  Itate,    and  no  attor- 

"  ncy,  fa6bor,  agent,  or  truftee,  appear  to  de- 

"  fend  in  the  fuit,  the  aMion  fliall  be  continued 

"  to  the  next  court,"  Sec. 

Upon  the  authority  of  this  flatute,  faid  JahiL 
Barloio  appeared  at  court,  and  in  his  own  be- 
half, pleaded  to  the  a6tion;  upon  which, judge- 
ment was  th^ Jirjl  te^yn,  rendered  againft  Strong, 
without  his  knowledge,  or  having  had  any  no- 
tice of  the  fuit. 

Upon  the  writ  of  error,  two  poiDts  were  con- 
tended ! — 

,  1.  That  Jabez  Barlow,  being  only  a  debtor 
to  Strong,  and  not  entrufted  with  his  property 
or  concerns,  was  not  authorized  to  appear  and 
defend  in  the  aftion  ; — and  therefore,  the  caufe 
ought  to  have  been  continued,  that  the  defen- 
<3ant  might  receive  notice  of  the  fuit. 

2.  That  the  appearance  of  Barlow  was  not 
in  the  chara6ler  of  attorney  or  agent,  but  in  his 
own  name; — therefore,  it  could  not  preclude 
Strong  from  the  right  to  a  continuance,  and  an 
opportunity  to  make  his  defence. 

Judgement  of  the  court  of  common  pleas  re- 
verfed.  By 


County  of  Fairfield^  Feb.  Term^ 


Court. 


-The  defendant  in  the 


By  the 

original  a6tion  was  not  an  inhabitant  of  this 
ftate,  nor  within  the  ftate  at  the  time  of  ferv- 
ing  the  writ,  nor  afterwards,  before  the  judge- 
ment was  rendered,  and  had  no  notice  of  the 
fuit ; — ^^therefore,  the  adion  ought  to  have  been 
continued  to  the  next  term,  agreeably  to  the 
provifion  of  the  ftatute  in  that  cafe  provided. 
And  the  appearance  of  Jabez  BarloWy  in  the 
manner  that  he  did,  could  not  take  the  cafe 
out  of  the  reafon  of  that  provifion  ;  for  he  was 
confidered  fimply  as  a  debtor  to  Strong y  who 
was  the  defendant  in  the  aftion  ;  and  it  does 
not  appear  that  he  Vv^as  ever  authorized  by 
Strong  to  atl  as  his  agent  or  attorney  ;  nor  did 
he  plead  in  the  name  or  behalf  of  Strongs  but 
in  his  own  name. — The  ftatute  refpetiing  ab- 
fent  and  abfconding  debtors,  when  firft  madCj 
extended  only  to  the  goods  and  eiFefts  of  fucli 
debtors,  left  in  truft  with  fome  agent,  attorney, 
or  truftee,  who  was  fuppofed  to  be  authorized 
by  fuch  debtor,  to  tranfaO:  his  affairs  ;  but  the 
paragraph  that  refpetls  perfons  indebted  to  fuch 
abfconding  debtor,  was  added  on  the  revifal 
of  the  laws  in  the  year  1784,  and  they  cannot 
be  fuppofed  to  have  any  authority  from  the  de- 
fendant in  fuch  adion,  unlefs  they  produce  it  m 
court;  and  therefore  ought  not  to  be  admitted 
to  appear  and  defend,  to  prevent  a  continuance 
of  the  caufe;  otherwife,  the  abfent  party  mighi 
be  fubjefted  to  unreafonable  demands,  by  a 
collufive  appearance  and  defence,  and  the  true 
intent  of  the  ftatute,  for  giving  time  for  notice^ 
be  eluded. 


in 

Strong 

againfi 

Barlowa 


Z-2 


Bishop 


g7§  County  o?  New-Havxk,  Feb.  TlvlU. 


1788. 


Bishop  etgainjl  Drake  and  Others, 


Bonii  of  re-  'TpHIS  was  di  fcWe  fdciaSy  by  the  treafurcr  of 

in  thi«"a"  J^     New-Haven  county,  upon  a  bond  of  re- 

nn^h  eret  cognizancc,  entered  in  a  prolecution  upon  tne 

taVcne"he  ftatute  againft  fecret  affaults. — The  bond  waf 

pauyr  for  taken  to  Joel  Northrop,  the  adverie  party,  con'. 


viiolc  bene- 


fit ihcy  .<cre  ditioned,  that  one  Brujh  and  Ifaac^,  defendants 
intc  dcd,  ns  •     1'^^^  profecution,  "  (hould  appear  before  the 

veil  bcto  e  ^  p  '  1       1      ij  XT 

the  lace  ft*-      court  ot  common  pleas,  to  be  hoi  den  at  New- 
cuteasfincci  i<  Haven,   within  and  for  the  county  of  New- 
to/ who  e      "  Haven,   on  the  firft  Tuefday  of  April,  then 
bcncfi  a-c-  u  pext,    aufwcT  to  the  complaint  of  faid  A^or- 
istakcn,       **  /Aro/;,  abide  the  judgement  of  faid  court  there- 
C^ire  f 'c'ui*  "  ^"*  ^"^  anfwer  all  damage,  in  cafe  they  (hould 
thereon,       «»  fail  to  make  their  plea  good,*' — Final  judge- 
bclnc^io-i!    ment  was  I'cndered  for  Northropy  the  coniplain- 
fiwlccornar.  ant,,  U>  recover  60/.  damages,  and  9/.  135.  3,:'. 
colt  ;  and   Brvjli   and  Ifaacs.wtxc  further  fer- 
tenced  to  pay  a  fine  of  20L  each,,  to  and  for  tl  e 
nfe  of  the  treafury  of  the  county  of  New-Ha- 
ven. 

Upon  the  fcire  facias^  the  defendants  plead- 
ed— That  after  the  rendering  faid  final  judge- 
ment, they  paid  and  fatisfied  to  faid  Northrop^ 
the  full  fum  of  damages  and  coft,  by  him  reco- 
vered in  faid  aftion,  which  he  received  and  ac- 
cepted in  full  fatisfaclion  and  difcharge  thereof; 
whereby  they  became  difcharged  from  faid  re- 
cognizance. 

To  which  there  was  a  demurrer,  and  joinder 
in  demurrer  ;  and  judgement  for  the  plaintiff. 
By  the  Cour t — (Judge  S h e r m a n  abfent. ) 
Several  queftions  arife  in  this  cafe,  upon  the 
fufficiency  of  the  declaration  : — One  is — was 
the  bond  of  recognizance  legal,  it  being  taken 
to  the  adverfe  party,  and  for  abiding  judgement ^ 
ice.    Whereas,  the  words  of  the  Itatute  arc, 

"  bonds 


County  of  New-Haven:,  Feb.  Term.  379 

"  bonds  for  profecution  fhail  be  taken  to  the  ad-     ===^=^= 
**  verfe  party/*  =:===L=^ 

Though  bonds  for  abiding  judgement  are  not     Bifhop 
within  the  letter  of  the  (latute,  they  are  clearly     -^.^/^.'^y? 
within  the  realbn  of  it ;  and  as  the  ftatute  is  I5rake,&c. 
remedial,    and  to  be   liberally  expounded,  it 
fliall  be  conftrued  to  extend  to  them  ;  and  fuch 
has  been  the  conftrudion  and  pradice  upon  it. 
B«t  if. the  ftatute  doth  not  extend  to  them,  yet 
there  appears  no  fufficient  reafon  why  they  may 
not,  and  why  all  bonds  of  recognizance,  for  the 
benefit  of  the  adverfe  party,  ever  might  not,  in 
tiiis  Itate,  be  as  well  taken  to  the  adverfe  party 
as  to  another  perfon,  for  his  ufe  1  and  on  the 
fame  ground  that  recognizances,  when  taken  for 
the  benefit  of  the  ftate  or  a  county,    are  taken 
to  their  refpe6tive  treafurers. 

But  admitting  the  bond  to  have   been  well 
taken,   and  operative  for  the  complainant,   yet 
mull   it  not  have  been  taken  to  the  county-     ' 
treafurer,  that  it  might  avail  him  ? — Northrop 
alone  was  ihc  adverfe  party  ;  but  prolecuted  - 
both  for  damages  to  himfelf,   and  a  fine  to  the 
public,    according  to  the  provifions  of  the  fta-- 
tute  ;  and  the  bond  being  to  refpond  the  judge- 
mcnt  that  fliould  be  rendered  in  the  fuit,  holds 
as  well  for  the  fine  awarded  as  the  damages  : 
Though   the  fine  is  awarded   to-  the  county^^         ^    ~ 
treafurer,   and  he   hath  a  feparate   execution 
therefor,    and   quoad  the  fine,  eventually   be- 
comes  a  party  to  the  judgement. 

But  if  the  county-treafurer  is  alfo  fecured  by 
the  bond,  yet  can  he  have  a/aVf /za^.';  in  his 
own  name,  he  not  being  the  connufec  ? — -The 
ftatute,  as  Vektive  to  this  point  only,  declares, 
in  conformity  to  the  principles  of  common  law,_ 
that  he  who  is  to  have  the  benefit  of  the  recog- 
nizance, ftiall  ^2LWQ  di  [lire  facias  u^ox\\U  A 
fcire  facias  is  different  from  an  adion  of  debt 
T^  'L  %  upon 


380  County  of  New-Haven,  Feb.  Term. 


i«88.     "po^  the  bond  ;  and  need  be  no  more  than  a 
5===     citation  to  the  bail,  to  fhew  r^afons  why,  from 
Biihop      the  equity  of  the  cafe,   on  the  proceedings  re- 
T)^*^k'*&      cited,  he  Ihould  not  pay  the  fum  awarded  againft 
*     '  the  principal ;  and  may,  for  any  thing  in  the  fta- 
tute,  or  nature  of  the  procefs,  to  the  contrary, 
whatever  the  common  practice  may  have  been, 
be  as  well  brought  in  the  name  of  the  party  to 
the  judgement  who  is  to  have  benefit  of  the  re- 
cognizance, as  of  the  connufee,  who  has  no  in- 
tereft  therein ;  and  better,   as  the  party  may 
thereby  avoid  embarraffment  and  a  circuity  of 
adions,  in  coming  at  his  right. — So  that  the 
declaration  is  good. 

As  to  the  receipt,  pleaded  in  difcharge  of  the 
judgement — it  is  limited  as  well  in  the  opera- 
tion as  the  term  of  it,  to  the  damages  and  cofl 
adjudged  to  the  profecutor. — Nor  was  it  in  his 
power  to  difcharge  the  other  part  of  thejudge- 
ment;  becaufe  it  vefted  a  diilin6l,  feparate,  and 
independent  right  in  another  perfon,  viz.  the 
^ow  plaintiff;  though  previous  to  the  judge- 
ment he  might  have  difcharged  the  fuit. 

Wherefore,  the  plaintiff  has  itili  a  remedy,  and 
m^y  have  it  by  this  procefs. 


Fitch  againjl  Loveland. 

ACTION  by  the  fheriff,  upon  a  bail-bond. 
The    defendant    pleaded That  after 

judgement  was  rendered  againft  Ebenezer  Day-* 
ton,  the  principal,  and  before  the  return  day  of 
the  execution,  J/on^zi  Prentisy  one  of  the  plain- 
tiff's deputies,  who  had  faid  execution  in  his 
hands,  to  levy  and  colleB,  did  fee  and  converfc 

with 


County  of  New-Haven,  Feb.  Term.  381 

mth  [dLid  Day  to  fly  at  his  dwelling-boufe,  within     ''^{T^^ 

the  plaintiff's  bailiwic;   and  that  faid  Preniis    ==== 

was  within  the  dwelling-houfe  of  faid  Dayton,      Bifhcp 

having  entered   peaceably  through  the  outer  ^''^^  '^ . 

door  thereof,  which  was  open,  while  faid  Bay-      '^"  ^'  '^' 

ton  was  in  an  inner  room  of  faid  houfe,  fepa- 

rated  from  faid  Prentis  only  by  a  common  pine 

door,  which  was  no  otherwife  locked  or  fallen- 

ed  than  by  a  fmall  ftaple  or  latch  of  iron,   faf- 

tening  on    the  inlide  :     That  faid  Dayton  was 

within  faid  inner  room,  wholly  unarmed  with 

any  initrument  or  weapon  of  defence,  exGept  a 

fmall  walking-ftick  or  cane,  of  about  three  feet 

in  length,  and  one  and  half  inch  in  circumfer- 

ence  ;  and  that  faid  Prentis  well  knew  the  fame, 

and  whereabout  in  faid  houfe  faid  Dayton  v/as  ; 

but  did  not  attempt  to  take  him. — And  at  the 

fame  time   MeiTrs.    Augur  and   Chandler,  two 

other  of  the  plaintiff's  deputies,   were  prefent, 

and  within  faid  Dayton's  houfe,  though  neither 

the  {d^'id  Prentis,  Augur,  or  Chandler,  requefted 

admittance  into  the  room  v;here  faid  Dayton, 

was  ;  nor  did  they  make  any  effort  to  open  the 

door  leading  into  faid  apartment,  or  otherways 

attempt  to  arrefi  the  body  of  faid  Dayton;  which 

it  was  in  the  power  of  faid  Pre??iis  to  have  dene. 

The  plaintiff  replied- — fetting  forth  a  variety 
of  circumftances,  tending  to  fliow  the  impraBi- 
cability  of  entering  the  room  and  a  r reding  i^^jy- 
ton,  and  the  danger  of  attempting  it ;  and  ccn« 
eluded  by  traverfmg  the  allegation  of  the  de- 
fendant, "  that  it  was  in  the  power  of  faid  Prcn^ 
"  tis  to  have  arrefled  the  body  of  faid  Dayton,*' 

On  demurrer  to  the  replication,  two  groiinds 
of  defence  were  taken  : — 

1.  That  the  plea  contained  fufficient  matter 
to  exonerate  the  bail,  notwithftandihg  what  was 
fet  forth  in  the  replication. 

2.   That 


38j  County  or  New-Haven,  Feb.  Term. 

•^ gg"         2.  That  the  declaration  was  infufficient;  for 

sBc=:i===     that  it  appeared  by  the  return  of  the  execution 

Fitch      fet  forth,  that  it  was  made  within  feven  days 

az^injf     after  the  execution  iffuedi  and  that  the  bail 

Lov«Iand.    could  not  be  fubjeded,  unlefs  the  officer  had 

kept  the  execution  till   the   return   day,   and 

made  further  fearch  for  the  body  of  the  debtor. 

But,  on  both  points,  judgement  was  for  the 

plaintiff. 

By  THE  Court.— — The  ftatute  fubje6ls  the 
bail,  in  cafe  of  the  principal's  avoidance,  and 
a  return  of  7ion  ejl  inventus  on  the  execution ; 
both  which  appears  to  have  been  done  in  this 
cafe. — But  the  defendant  undertakes  to  falfify 
the  return,  alledging  in  his  plea,,  that  Jonas 
Prtntisy  the  plaintiff's  deputy,,  who  made  the 
return,  having  the  execution  in  his  hands  to  le- 
vy, while  it  was  in  force,  entered  the  dwelling- 
houfe  of  Ebenezer  Dayton,  the  debtor,  who  had 
Ihut  himfelf  up  in  an  inner  room  in  faid  houfe, 
and  the  faid  Pre?i^25,  knowing  that  he  was  there, 
neglefted  to  enter  faid  inner  room,  and  arreil 
his  body,  by  virtue  of  faid  execution  ;  and  that 
it  was  in  his  p>ower  to  have  taken  the  body  of 
faid  Daytouy  Sec. 

The  replication  concludes  with  a  traverfe- — 
"  That  it  was  in  the  officer's  power  to  l>ave 
"  taken  the  body  of  [siid  Dayton;**  which  the 
defendant  ought  to  have  accepted,  and  put  the 
fa6t  to  the  jury,  whether,  under  all  the  circum- 
fiances,  it  was  in  the  power  of  faid  Prentis  to 
have  arrefted  the  body  of  faid  Dayton;  for  the 
Court  cannot  infer  the  fa8:  from  the  matters  let 
forth  in  the  pleadings. — A  demand,  and  refufal 
to  deliver  the  plaintiff's  property,  by  the  defen- 
dant, may  be  evidence  to  a  jury  of  a  converfion ; 
but  it  would  not  be  a  fufficient  averment  of  a 
converfion  in  a  declaration.     So  evidence  tliat 
a  bond  for  money  has  lain  more  than  twenty 

years. 


County  or  New-Havew,  Feb.  Term.  §83 

years,  without  any  demand  of  the  money  due,     ""TtSIT 

or  payment  of  intereft,   may  be  fufficient  for  a r-x 

jurv  to  find  full  payment ;  but   fuch  an  aver-      Fitch 
ment  in  a  plea  would  not   be  fufficient  to  bar     «i"Y^/ 
the  a61ion. — Therefore,  on  this  point,  the  law  ^°^^^^"  * 
is  in  favour  of  the  plaintiflF. 

It  has  never  been  adjudged,  in  any  cafe  in  this 
date,  within  our  knowledge,  whether  it  be  law- 
ful or  not,  for  an  officer  to  break  open  either  the 
outer  or  inner  door  of  a  dwelIing-houf<^,  to  ar- 
reft  a  perfon  on  an  execution  for  debt,  or  on  any 
civil  procefs;  nor  do  we  know  of  any  inftance 
where  it  has  been  done  by  a  fherifF  or  other  of- 
ficer :  And  we  do  not  fee  any  good  or  weighty 
reafon  for  the  diftinffion  made  in  England  be- 
tween the  breaking  an  outer  door,or  inner  door, 
for  that  purpofe; — but  that  point  need  not  be 
determined  in  this  cafc.     See  Hobart,  62. 

But  the  defendant  hath  taken  an  exception  to 
the  plaintiff's  declaration — that  it  (hews  that  the 
faid  Prentis  returned  the  execution  on  the  fc- 
venth  day  after  the  date,  whereas  he  ought  to 
have  held  it  till  the  expiration  of  the  (ixty  days, 
and  have  ufed  further  endeavours  to  have  taken 
Dayton,  in  exoneration  of  the  defendant.— 
It  appears  by  the  declaration,  that  Prentis  made 
an  endorfement  on  the  execution,  of  his  repair- 
ing to  Dayton*s  dwelling-houfe,  in  Derby,  to 
make  demand  of  payment;  which  endorfement 
is  dated  the  21ft  day  of  March,  1786,  which 
was  feven  days  after  the  date  of  the  execution  : 
But  it  cannot  be  infered  from  hence,  that  he 
returned  the  execution  into  the  office  of  the 
clerk  of  the  court  the  fame  day ;  nor  has  the 
averment  of  the  return  of  the  execution  any  ne- 
ceffary  connexion  with  the  time  of  the  endorfe- 
ment ;  but  he  fays,  **  he  duly  returned  it,  &c, 
as  by  "  the  files  and  records  of  faid  city  court, 
"  ready  in  court  to  be  produced,  fully  appears." 

And 


384  CiyUMTY    OF    NlVV^^I  AViLN,    FeB.  TER^f. 

~rg|^     And  the  plaintiff  fays  in  his  replication,  that  he 
5==L==     returned  it  into  the  clerk's  office  on  the  fixtieih 
Fitch       day  after  it  was  iffued;  which,  if  not  true,  njight 
aga^nj^     have  been  difproved  by  the  entry  of  the  clerk, 
LovsUiid.    ^£  the  time  of  the  return.     But  if  it  had  beea- 
returned  before  the  reiurn  day,    the  defendant 
could  not  take  advantage  of  it,  unlefs  he  fhews 
that  he  was  prejudiced  by  it,   which  he  hath 
not  ; — and  fo  it  has  been  adjudged  in  feverat 
cafes. — He  was  bound  by  his  obligation  to  have 
the  debtor  in  court,   when  called  to  anfwer  ta 
the  fuit,  or  on  rendering  the  final  judgement ; 
and  the  defendant's  default  of  appearance  is,  at 
common  law,  a  forfeitur-e  of  the  bond.     But  in 
*  favour  of  the  bail,  the  (iatme  makes  it  necef- 

fary  that  execution  be  taken  out  and  returned 
^  non  efc  invcntuSy  before  the  bail  fhall  be  charged ; 
and  when  it  appears  that  there  has  not  been 
reafonable  endeavours  on  the  part  of  the  cre- 
ditor or  oilicer,  to  levy  the  execution  on  the  ef- 
tate  or  pcrfon  of  the  debtor,  but  rather  an  in- 
tention and  endeavour  to  avoid  doing  it,  in  or- 
der to  charge  the  bail ;  or  if  the  bail  render  the 
body  of  the  debtor,  or  he  render  himfelf  t©  the 
officer,  to  be  taken  by  the  execution,  at  apy 
time  before  the  return  day,  the  b^il  ought  to 
be  exonerated. 

But  if  the  officer  is  prevented  from  taking 
the  debtor,  by  the  debtor's  avoidance,  or  re- 
liftance,  fo  that  he  cannot  be  arrefted,  without 
manifeli  peril  and  danger  to  the  officer  of  his 
life,  or  fome  bodily  hurt,  and  he  thereupon 
returns  the  execution,  with  non  ejl  inventus  en- 
dorfed,  the  bail,  who  is  fponfor  for  the  debt-, 
or,  ought  to  be  liable  to  fatisfy  the  judge- 
ment ;  for  it  was  as  much  his  duty  to  rendetv 
the  body,  as  the  officer's  to-  take  it.  But  if  the. 
principal  be  arrefted  by  virtue  of  the  executi- 
on, and  afterwards  by  force  refcues  himfelf,  and' 

efcapes, 


County  of  New-HaveNj  Feb.  Term.  385 

efcapes,  or  is  refcued  by  others,  the  officer  can-     '^^ST 
not  excufe  himfelf  from  the  demand  of  the  ere-     =^^ — =« 
ditor,  by  returning  a  refcous,  or  that  he  cannot      Fitch 
do  execution,  becaufe  he  had  power  to  have     agamji 
taken  fufficient  affiHance  ;  but  the  bail  will  be  ^^^'^^^"^' 
exonerated. 

Judge  Ellsworth,  dijfenting. "'  •  In  this 
cafe  I  have  the  unhappinefs  to  differ  in  opini- 
on from  my  brethren  ; — 

By  ftatute,  bail  is  holden  to  refpond  the 
judgement  only  in  cafe  of  the  "  avoidance  oF 
**  the  principal,  and  a  return  of  non  ejl  inven-^ 
^^  tus.'* — Merely  the  return  is  not  fufficient. 
There  muft  be  an  avoidance  in  faO;  to  juftify 
it. — If  the  principal  is  to  be  found  v/ithin  the 
bailiwic,  and  under  circumilances  that  he  may 
be  lawfully  arrefted,  there  is  not  that  avoid- 
ance that  will  juftify  a  return  of  non  eji  invent 
tus ;  and  if  fuck  return  be  made,  the  bail,  up- 
on ^  fcire  facias^  may  falfify  it. — Tlie  plaintiff 
in  this  cafe,  canhot  take  advantage  of  his  own 
or  his  deputy's  falfe  return,  if  fuch  has  been 
made,  to  fubjeB  the  bail,  and  exonerate  him- 
felf. 

From  the  pleadings,  it  appears—That  the 
plaintifF*s  deputy,  while  the  execution  was  in 
his  hands,  and  in  force,  was  peaceably  admit- 
ted  into  the  debtor's  dwelling-houfe,  where  he 
then  was,  (hut  up  in  a  private  room,  which  the 
officer  then  knew,  and  converfed  with  him; 
and  there  was  nothing  in  his  way,  to  hinder 
the  levy,  but  an  inner  door,  and  the  debtor's 
threats,  who  had  a  ftick  in  his  hands,  the  fize 
of  a  walking-cane. — After  admitting  thefe  fa6ts 
a  traverfe,  "  that  it  was  in  the  officer's  po\s^r 
*•  to  arreft  the  debtor,*'  was,  I  apprehend,  but 
traverfing  a  legal  inference,  or  queftion  oflaw^ 
and  required  no  anfwer, 

A  a  a  A« 


3B5  County  of  NE\y-HAVEN,  Feb.  Ter^I. 

""iVBBT  ^^    ^^    ^^^^  threats,    they   could  not   excufc 

=====  the  officer's  negle8:  to  levy  :  He  was  accom-; 
Fitch  panied  with  two  flieriff's  deputies,  and  mighty 
againjl  if  ncceflary,  have  called  the  ji^^  com?7^/?^5.—r 
The  fheriffmay  not  return,  that  through  fear^ 
or  want  of  ftrength,  he  cannot  do  execution.  , 
With  rerpe8:  to  the  inner  door — I  think  it 
was  clearly  the  duty  of  the  officer,  after  in- 
forming of  his  bufinefs,  and  demanding  en-i 
trance,  to  have  forced  it  open. — The  ftatute 
of  this  flate,  fubjefting  the  body  in  execution, 
as  a  mean  of  enforcing  payment,  privileges  no" 
place  ;  it  provides  no  afylum  from  a  legal  pro- 
cefs  ;  nor  does  found  policy  at  prefent  feem  to 
require  any. — -It  is,  indeed,  an  antient  do6trine 
of  the  Engliffi  common  law,  that  for  the  exe- 
cution of  a  civil  procefs,  an  outer  door,  or 
window,  is  not  to  be  broke  open  ;  becaufe  of 
the  danger  and  inconvenience  that  would  re- 
fult  to  the  family,  from  being  left  open  to 
thieves  and  robbers;  which  politically  was. 
conlidered  a  greater  evil  than  poftponing  the 
procefs.  Privileging  the  debtor  who  abfconds 
from  juftice,  in  avoidance  of  a  legal  procefs, 
was  not  the  objeQ  of  the  rule,  though  it  has 
been  a  confequence  of  it. — This  privilege,  as 
it  is  called,  introduced  at  iirft  upon  doubtful 
ground,  and  with  fome  difference  of  opinion 
among  the  judges,  has  ever  been  conftrued 
with  ftri^tnefs  and  caution. — There  is  not  a 
diBiim  in  the  Engliffi  authorities  of  its  extend-  ^ 
ing  to  an  inner  door,  but  many  refolutions,  and  ^ 
one  recently,  the  very  (Irong  cafe  of  Lee  and 
■Ganfely  Cowp.  j,  that  it  does  not; — and  I  ^truft 
there  has  been  no  refolution  of  our  own  .ex- 
lending  it  farther  than  the  common  laws  of 
England  has  dorje. — I  conceive,  therefore,  that 
the  inner  door  was  no  legal  obftacle  in  the  of- 
^cer's  way,  but  that,  having  peaceably  entered 

the 


County  of  New-Haven,  Feb.  Tekjvk  387 

the  houfe,  be  might  and  ought  to  have  arrefted  "ygX 

the  principal ;  and  confequently,   that  the  bail  ===:== 

is  not  holden.— Bail  is  highly  favoured  in  law.  Fitch 

and  I  think  the  fcatutes  for  their  faving  Ihould  ^g^'^ 
fee  liberally  expounded.   . 


Cns  oC  the 

lubfcabi-g 


Fleming  agaUtJl  Reynolds.    ■ 

ERROR  from  the  court  of  common  pleas.— 
The  error  complained  of,  -was— the  denial  v  tnetics  to 
of  an  appeal. — The  original  atlion  was  brought  coming:'  n^* 
by  Fleming,  as  executor  o^  McDonald y  deceafed,  ^^^^^^^,'^"^"'' 
vipon  a  promiffory  note  for  358/.  money,  pay-  ^,ilI^ot'en- 
able  to  the  deceafed.  fubfcribed  by  two  pcrfon^,  cic.  thefmt: 
as    witneiies,    who,    at  the  time  or    lUDicnb-  apfe^uiis. 
ing,  were  legal  witnelfes ;  but  one  of  them  had 
afterwards  become  interefted,  by  devife  of  the 
deceafed  promiffee. 

The  words  of  the  ftatute  regulating  appeals, 
are — *'  That  all  a6tions  brought  on  bond  or  notCy 
**  given  for  the  payment  of  money  only,  vovck- 
•*  ed  by  two  witneifes,  liiall  be  heard  and  finally 
'*  determined  by  the  county  court." 

The  only  point  in  controverfy  was — whether 
the  witneis  becoming  incompetent,  after  the 
execution  of  the  note,  could  render  the  caufe 
appealable. 

By  Mr.  Chance^  diud  Mr.  S.  Baldwin,  for  the 
plainfiff  in  error,  it  was  contended— That  the 
Englilh  law  refpetiing  the  atteftation  of  wills, 
was  analogous  to  our  (tatute  refpecling  appeals ; 
and  that,  by  all  the  adjudications  in  England 
on  this  fubjed,  it  was  held  necclfary,  that  the 
fabfcribing  witnelles  fhould  be  able  to  teftify 
to  the  execution;  and  the  reafoii  applies  with 
A  a  a  ^  the 


388  Co-UNTY  OF  New.Haven,  Feb.  Terki; 

1788.     ^^^^  greatefi:  for-ce  to  this  cafe ;    for  the  legifla- 
===a     tore  have  as  pofitively  faid,   that  this  fhail  be 
Fleming    neceflary  to  bar  an  appeal,  as  it  is  faid  in  Eng- 
^gcu^yl     land  re{pe6iinff  wills: — Therefore,  if  the  wit- 
neiles   become   incompetent,    and   cannot   be 
brought  in  at  the  time  of  trial  to  attell  the  ex- 
ecution  of  the  note   or  obligation,   it   is  not 
vouched  as  the  law  directs,  and  may  be  appeal- 
ed.— It  was  clearly  intended  by  the  legiflature, 
that  the  witneffes  fliould  be  competent  at  the 
time  of  fubfcribing  ;  but  it  would  be  to  ho  pur-^ 
pofe  if  they  were  not  [o  at  the  time  of  trial. 

That  oar  ftatute  ought  to  be  taken  in  a  ftriCl 
fenfe  ;  for  it  diftingaiihes  a6lions  of  a  certain 
defcription,  and  fubjeQs  them  to  certain  difad- 
vantages. — So  far  it  operates  to  deltroy  a  pri- 
vilege or  right. — And  they  cited  Go/s  vs.  Tra^ 
xy,  2  Ver,  699. — Needham  vs.  Smith,  2  Ver.  463. 
Hillyard  vs.  Jennings^  1  Ld.  Raym,  505. — Car- 
thew^  514.  S.  C. — Windham  vs.  Chetxooy,  1  Bur. 
414. —  1  BlacL  Rep.  95,  S.  C. — 2  Stra,  1253, 
Avfieyx^.  Dowfing, — SalL  286,  TiUy'scafe,—^ 
Baker  vs.  Ld.  Fairfax,  1  Stra.  ici. 

Mr.  Edwards  and  Mr.  Ingerfoly  on  the  other 
fide,  contended — That  the  word  vouched  has  a 
determinate  meaning,  eftablifhed  by  praftice, 
and  that  it  conveys  the  fame  idea  as  the  word 
witnefled.  If  two  witneffes,  competent  at  the 
time,  have  fubfcribed  to  the  execution,  there 
Ihali  be  no  appeal :  That  the  ftatute  of  this 
fiate  refpe^ling  wills,  is  expreffed  in  fimilar  lan- 
guage ;  and  it  hath  always  been  held,  that  the 
witnelling,  fo  as  to  give  validity  to  the^ill,  as 
prefcribed  by  the  ftatute,  is  matter  of  form, 
and  the  proof  of  the  execution  is  another  thing. 
The  legiflature  did  not  intend  that  a  fraud  ftiould 
be  practiced  upon  the  law,  and  that  the  cafe 
fhould  not  be  appealed,  merely  becaufe  two 
names  were  placed  to  the  obligation ;  but  when 

the 


County  of  New-Haven,  Feb.  Term.^  2>^g 

the  party  examines,  and  finds  difinterefted  and     ^"^"g^ 
co^Tipetcnt  witneiTes  prefent,   who  iubfcribe  to     =i^=:3 
the  execution  of  the  obligation,  it  is  fufficient:     Fleming 
For,  from  this  arifes  that  prefumption  of  the     ^g'^-^.f^ 
fairnefs  of  the  tranfaction,  which  the  legii]atur€  ^"7^-°^^** 
intended  fhoiild  bar  an  appeal. 

They  contended — That  the  cafes  From  chan-^ 
eery,  cited  on  the  other  (ide,  were  not  in  point  i 
That  tiie  reafon  of  taking  depofitions  in  perpe^ 
'ttiam  rei  memoriasm,  was  not  applicable  to  this 
cafe.  And  to  oppofe  the  authorities  read  on 
the  other  fide,  the  following  were  cited  :— Goi- 
J'rey  vs.  Norrisy  i  Stra,  ^^.—Lockhartws,  G^a^ 
ham^  1  Stra.  35. — Hawkins  vs.  Perkins^  1  Sira* 
406. — Jones  vs.  Mafo^i^  2  Stra.  833. 

This  cafe  was  argued  the  laft  term,  and  con«. 
tinued  to  advife  ;  and  the  judgement  of  the 
common  pleas  now  affirmed. 

By  the  Court. The  vouthing  or  at« 

teftatlon  mentioned  in  the  ftatute^  bath  refer- 
ence not  to  the  time  of  the  aQion  upon  the 
note  or  bond,  but  to  that  of  the  execution,  and 
is  defcriptive  of  the  manner  and  circumftancci; 
of  the  execution  ;  and  much  evidence  arifes  of 
the  authenticity  of  a  note  or  bond,  and  the  faii^-»- 
nefs  of  obtaining  it,  from  the  known  iignature 
of  twoperfons  atteiling  the  fame,  who  are  difm-. 
terefted  at  the  time  of  atteftation,  though  nei^- 
ther  fhould  be  alive,  or  prefent,  or  admiffible 
to  teftify  at  the  time  of  trial. —Where fore., 
an  appeal  in  this  cafe  v/as  rightfully  denied. 

yiidgeDx'E.^y  dijfenting. From  the  reafozi 

^cf  the  law  refpe6ling  appeals,  I  think  an  appeal 
oughc  to  have  been  allowed  in  this  cafe.  The 
ftatute  has  taken  away  the  right  of  appeal  in  ac- 
tions brought  on  bond  or  note,  given  for  the 
payment  of  money  only,  and  vouched  by  two 
witneffes.  It  is  becaufe  of  the  certainty,  clear- 
nefs,  and  fimplicity  of  the  contract,   and  from 

the 


390  County  of  New-Haven,  Feb.  Term. 

■^Too"  the  circLimftances  of  it  the  mod  free  from  per- 
r-  - — -  plexity  and  difpute.  The  obligation  being  for 
Fleming  money  only^  which  has  a  fixed  and  determinate 
again /I  yalue  j  and  there  being  two  difinterejled  wit- 
Reynolds,  j^effes,  that  may  be  called  upon  at  the  trial,  to 
avouch  or  teftify  to  the  written  contra6l,  as  en- 
tered into  freely,  without  compulfion  or  fraud. 
This  being  the  fuppofed  Hate  of  the  cafe,  to 
allow  an  appeal  of  acaufe  foindifputable,  would 
create  an  unreafonable  delay  of  juftice. —  On 
this  ground,  the  reafon  of  the  ftatute  ceafcs, 
when  payment  is  plead;  for  the  fubfcribing 
witne.iles  to  the  execution  are,  by  fuch  plea, 
put  off  the  queftion.  And  fo  when  ufury\  or 
durefsy  is  made  the  defence,  from  which  the 
molt  nice  queftions  in  law  often  arife,  the  rea- 
fon of  the  cafe  feems  to  require  that  an  appeal 
fhould  be  allowed  ;  and  the  ftatute  fhould  re- 
ceive fuch  a  conftru6tion  as  will  tend  moll  to 
fupprefs  the  mifchief  and  extend  t^e  remedy. 
If  there  is  any  good  fenfe  or  reafon  in  the  word 
vouchedy  as  ufed  in  the  ftatute,  it  muft  mean 
fomething  more  than  that  the  names  of  two 
perfons  ftiould  be  fabfcribed  to  the  bond  ;  for 
if  fuch  fubfcribing  periods  be  not  legal  ,or  ad- 
miffible  witneftes,  it  is  to  every  legal  purpofe, 
as  if  there  was  no  witnefs. — When  is  the  time 
that  fuch  fubfcribing  witneftes  become  necelfary 
to  the  parties?  It  is  when  the  tranfaBion,  to 
"which  they  have  fubfcribed,  is  drawn  into  con- 
troverfy;  and  not  till  then  is  their  atteftation 
needed. — Hence  it  may  be  fairly  infered,  that 
the  ftatute  does  not  regard  the  time  of  execu- 
tion merely,  but  the  time  of  trial. 


Tyli 


County  of  New-Haven,  Feb.  Term,  391 

Tyler  againjl  Cook.  ^^  " 

THIS  was  an  a6lion  againft  an  adminiftra-  p^ofi"fjf® 
tor  on  an  eflate,  reprefented  and  regular-  on  an  iofoi- 
ly  proceeded  with  as  infoivent ;  brought  before  Icredlll^r* 
an  average  ftruck,  by  a  creditor  whofe  claim  vt^o  hath 
had  been  exhibited,  and  allowed  by  the  com-'  cUim^ai- 
miffioners. — It  was  brought  on  the  ground  of  ^ovedbythe 
having  difcovered  further  eftate  not  invento-  w^sfca-^- 

l-i^(],  riotfuftain  x 

The  only  queftion  upon  the  pleadings  was—  recovery^of 
whether,  under  thofe  circumftances,  the  plain-  '^cw,d'fco- 
tift  was  entitled  to  this  action.— —And,  bu:hisre- 

By  the  whole  Cou-rt.'— ^We  are  of  opi-  f^^iy  Y^"il^ 

•11-  I  r       ^        n  .       r        be  with  the 

nion  that  he  is  not;    becauie  the  itatute  is  ex-  other  c  edi- 
prefs  "  that  no  procefs  in  law  (except  for  debts  [he^'ad'mini- 
"  due  to  this  flate,  and  for  the  lad  ficknefs  and  ^lation 
"  funeral  charges)  fliall  be  admitted  or  allowed  cSie  ad- 
**  againft  an  executor  or  adminiftrator  on  an  in-  "^  niftraror 
''  folvent  eftate,  fo  .long  as  the  fame  fliall   be  tol^vtac^^^^ 
"  depending  as  infoivent."     And  the  plaintiff's  i^i 
debt  is  not  within  the  exception. 

The  plaintiff  having  difcovered  further  ef- 
tate, V70uld,  by  a  provifion  in  the  ftatute,  have 
faved  his  claim,  in  cafe  he  had  not  exhibited  it 
within  the  time  limited,  and  by  implication  have 
entitled  him  to  an  average  upon  the  whole  ef- 
tate, or  fuch  lefs  fum  as  the  eftate  by  him  dif^ 
covered  fhould  amount  to ; — but  that  is  not  this 
cafe. — His  claim  was  feafonably  exhibited  and 
allowed,  and  all  the  benefit  he  could  derive 
from  the  difcovery  of  further  eftate,  would  be 
to  come  in  for  an  average  of  that  alio,  in  com- 
mon with  the  other  creditors,  when  it  Ihould  be 
fold,  and  the  average  fettled,-  and  his  remedy 
jointly  with  theirs,  in  cafe  the  adminiftrator 
fliould  refufe  to  add  it  to  the  inventory,  would 
be  on  the  adminiilration  bond. 

Broom 


cc 


<c 


292  County  of  New-Haven^  Fjbb,  Term* 

^      7    Broom   tf«i  Pl att   aminfk   Jennings  and 

Broom  &c.  TT 

agatnjt 

Jennmgs,  ^  RRQR  from  the  court  of  common  plea.*;.— . 
Jlj  The  original  adion  was  upon  apromiffory 
note,  for  419^.  i^^.  gi.  New- York  currency, 
on  intereil,  dated  September  20th,  1775,  en- 
dorfed  as  follows,  viz.—**  Received,  May  14, 
1779,  of  Mr.  William  HerroTiy  26BL  125.  8^. 
'*  New- York  currency,  in  continental  bills,  j^er* 
^'  loofe  receipt  given  him. — Samuel  Broom  and 
Co.'' Upon  a^ default,  and  hearing  in  da- 
mages, on  motion  of  the  defendant,  the  da- 
mages were  afTeffed  at  353^.  14^.  ^d.  New- 
York  currency. 

The  error  affigned  v/as — That  the  damages 
were  afTeffed  too  lov/  :  That  the  endorfement 
fhould  have  been  reduced  by  the  fcale  of  de- 
preciation, and  the  damages  aifeffed  at  718/. 
15.  6d.  New-York  currency. 
Judgement  affirmed. 

By  the  whole  Court. Error  is  notto 

be  prefumed;  and  for  otfght  that  appears  from 
the  record,  the  damages  were  affeffed  right : 
for  they  were  affeffed  upon  a  hearing  of  the 
parties,  and  the  receipt  refered  to  in  the  en- 
dorfement, might  have  fhov/n  an  agreement  of 
the  plaintiffs  to  accept  and  apply  the  bills  no- 
minally, or  the  defendants  might  have  fliown 
other  payments  j  for  they  were  not  confined  to 
the  endorfement. 


HuNCERrORD 


County  of  Hartford,  March  Term.'  39^ 


HuNGERFORD  agaiujl  Thomson. 


Hunger- 

IN  the  trial  of  an  aftion  by  the  indorfee  of  a  ^o»*<^ 
note,  againft  the  ongm2A  promijjee^  who  had  r^v^^^f 
endorfed  his  name  on  the  back  of  the  note, 
leaving  a  blank  over  it;  the  defendant  offered 
witnelTes  to  prove  that  it  was  done  only  for  the 
purpofe  of  a  power  of  attorney  ;  and  that  it  was 
not  the  agreement  or  intent  of  the  parties,  that 
the  defendant  ftiould  make  himfelf  refponfible : 

But  the  witnefTes  were  not  admitted. And, 

By  the  Court. The  defendant's  fetting 

his  name  to  the  blank  on  the  back  of  the  note, 
was,  according  to  the  nature  of  the  tranfadion, 
and  the  courfe  of  bufmefs,  an  authority  to  the 
plaintiff  to  write  over  it  a  power  of  attorney, 
or  an  aflignment  with  warrantee,  at  his  ele6lion; 
and  the  defendant  is  eftopped  to  fay  the  con* 
trary. 


Eno  againjl  Roberts* 

ERROR  from  the  judgement  of  a  Juftice  of  Aftlon  wlfi 
the  Peace. i^o^^r^s  having  been  a  col-  ofi"cSre7J 

leftor  of  taxes,    brought  his  aftion  on  the  cafe  ter  againft 
againft  Eno,  executrix  of  the  laft  will  of  Eno,  o?a"mint' 
deceafed,   to  recover  the  amount  of  taxes  on  ^r^tor,  to 
the  bills  in  his  hands  againft  the  deceafed.  due  from  the 

Upon  demurrer  to  the  declaration,  it  was  ob-  <^e«afcd. 
je6led,    that  no  fuch  fuit  could  be  maintained 
by  a  colle6ior ; — but   the  declaration  was,  by 
the  juftice  adjudged  fufBcient ;  and  the  judge- 
ment here  aftirmed. 

By   the   Court. The  only  matter  af- 

figned,  and  relied  on  by  the  plaintiff  in  error, 
B  b  b  is— 


394  County  of  Hartford,  March  Term. 

"^  tSF"     ^^ — ^^^^  ^^^^  a6lion  could  not  be  maintained  by 
tte=L==:L     a  coUeftor;  becaufe  the  tax  was  not  a  debt  due 
Eno       to  him,  but  to  the  town  :— Therefore,   without 
againft     noticing  any  informalities  or  circumftantial  de- 
Roberts,     fg^s^    tlie  cafe  is  decided  on  that  point  only  ; 
which  is  a  cafe  that  may  frequently   occur  in 
the  colledion  of  taxes,  though  we  know  of  no 
former  adjudication  in  fuch  a  cafe. 

It  is  certain,  that  the  tax  was  a  debt  againft 
the  eftate  of  the  deceafed,  which  the  executrix 
ought  to  have  paid,  and  which  would  have  been 
allowed  to  her  in  the  fettlement  of  her  adrni-^ 
niflration  account. 

It  was  adjudged  in  an  a6lion  of  trover,   re- 
ported by  Burrow,  1152,  Stevens  vs.  Evans,  &c* 
That  a  rate  due  from  a  perfon  deceafed,  could 
not  be  levied  on  his  eftate,  in  the  hands  of  his 
adminiftrator,  without  firft  convening  the  ad- 
miniftrator  before  Juftices,   to  fhew  caule  why 
he  fhould  not  pay  it : — And  this  judgement  ap- 
pears to  us  to  be  well  founded ;   for  the  debts 
of  perfons  deceafed  ought  to  be  paid  in  the 
courfe  of  adminiftration  appointed  by  law,  and 
the  adminiftrator  can  be  no  farther  liable  than 
he  hath  aifets  in  his  hands. — But  no  opinion  is 
given  in  that  cafe  who  ought  to  bring  the  fuit. 
But  as  the  colle6tot  is  the  only  perfon  who 
has  right  by  law   to  receive  the  rates  of  the 
perfon  taxed,  and  is  accountable  to  the  public 
for  the  money  when  colleded — we  are  of  opi- 
nion, that  he  is  the  moft  fui  table  perfon  to  bring 
the  fuit;  which  is  only  to  obtain  a  new  warrant 
or  execution  againft  the  reprefentative,  inftead 
of  that  which  he  had  againft  the  deceafed  ; — - 
nor  c^n  the  reprefentative  be  thereby  preju- 
diced, any  more  than  if  the  fuit  was  brought  in 
the  name  of  the  town,  or  other  community,  by 
•whom  the  tax  is  laid.     As  the  whole  cafe  is  fet 
forth  4n  the  declaration,  he  can  be  under  no 

difadvantagc 


County  of  Hartford,  March  Term.  395 

difadvantage  in  making  a  defence. — It  may  be     ^"TgR^ 
a  bardfliip  for  a  colieBor  to  be  obliged  to  bring     ^^     ^ 
a  fuit  in  fuch  cafe,  without  fooie  compenfation        Eno 
from  the  public,   as  the  legal  coft  may  not  be      i^gainjt 
adequate   to   his   trouble   and  expence  ; — but     ^*"*''^'^** 
that  is  a  matter  which  lies  between  him  and  the 
public,    and  is  no  ground  of  exception  on  the 
part  of  the  defendant. — The  colle6tor  is  obliged 
to  pay  the  public  the  amount  of  the  rates  that 
he  could  have  colle61ed,  when  they  become  due, 
■whether  he  has  coiletled  them  or  not ;  and  he 
is  authorized  by  the  ftatute  to  reimburfe  him-^ 
felf,  by  colleding  them  any  time  afterwards. — 
In  this  cafe,  the  plaintiff  declares,  that  he  had 
paid  the  rate  to  the  town  ;  and  therefore,  it  is 
a  debt  now  due  to  him. 

So  the  judgement  of  the  Juftice  was  afiirmeda 


Comes  againjl  Prior. 

THIS  was  an  a6lion  of  difTeifin,  to  which  inAncjrft- 
the  defendant  pleaded — That  in  a  former  ^^''^■>  ",'* 
fuit  between  the  fame  parties,  wherein  the  pre-  thetkic  cf 
fent  plaintiff  was  defendant,  a  verdi8:  was  found,  '^^  ^^,^i  ^^' 

11  1  1  •     n    1  •  1   •       "^a"dcd  was 

and  a  judgement  rendered  againit  hnn,  on  his  determined, 
plea  of  tide  to  the  land  now  demanded  j^ — and  *"ie  i^'^f^  "^ 
on  demurrer,  it  was  held,  aftJon  of 

By  the  Court. That  the  firft  fuit  being  j;;!?;'?,^'- 

only  an  a6lion  of  trefpafs,  for  the  recovery  of  Tame  par- 
damages,  and  this  being  an  a6lion  for  the  reco- 
very of  the  land,  is  of  a  higher  nature  : — ■ 
Therefore,  the  judgement  pleaded  is  not  a  bar 
to  this  fuit ;  for  the  party  may  now  be  able  to 
produce  further  evidence  in  fupport  of  his  title, 
than  was  produced  on  the  former  trial.  And 
B  b  b  a  this 


tics, 


39S  County  or  Hartford,  March  Term. 

^Tgg^  this  is  admiffible  by  the  uniform  pradice  v  t  the 

s=-A — '-  courts  of  law  in  this  ftate,    as  well  as  in  Eng- 

Comes  land,  in  favour  of  eftates  of  inheritance.     Sec 

againft  £^c,  Abrid,  iig. 

'  ^^^^^*  So  judgement  was  for  the  plaintiff. 

Note. — Judge  Ellsworth   cxcujed  himfeJf 
in  this  cafe* 


Hart  agairi/l  Bull. 

ACTION  of  debt,  upon  a  bond,  executed 
the  firft  of  May,  1786,  conditioned  as  fol- 
lows : — *'  Whereas  the  faid  Hart,  on  the  19th 
"  day  of  March,  1784,  executed  two  notes, 
**  jointly  with  faid  Bully  for  300/.  to  M,  Morfe, 
"  for  the  fole  duty  of  faid  Bull : — Now,  if 
"  faid  Bull  fhall  and  doth  pay  up  faid  notes, 
*'  and  fully  indemnify  and  fave  harmlefs  the 
**  faid  Harly  from  all  coil,  damages,  expence 
"  and  trouble,    on  account  of  his  being  bound 

"  as  aforelaid,  then.   Sec.'' The  breach  af- 

ligned  was — That  the  defendant  had  failed  to 
pay  the  notes  :  Alfo,  that  foon  after  the  notes 
were  executed,  they  were  affigned  to  Lawrence 
and  MorriSy  in  New- York,  who  threatened  to 
fue  the  plaintiff  thereon  ;  and  to  avoid  an  ar- 
reft,  he  forbore  going  to  New-York,  to  tranf- 
a8  his  neceffary  bufinefs  there,  as  a  merchant, 
to  his  damage  50/.  which  the  defendant  had 
not  paid. 

The  cafe  being  thus  dated  by  the  pleadings, 
on  demurrer  to  the  replication,  judgement  was 
for  the  defendant. 

By 


County  of  Hartford,  March  Terw** 

By  the  whole  Court. -As  to  the  plain- 
tiff's lofs,  faid  to  be  fuftained  by  his  not  going 
to  New- York,  through  fear  of  an  arreft — it  is 
not  dired  damage,  occafioned  by  being  furety 
for  the  payment  of  the  notes,  but  remotely  con- 
fequential,  and  the  condition  of  the  bond  does 
not  extend  to  it :  It  was  alfo,  all  antecedent  to 
giving  the  bond ;  whereas  the  bond  refpe8:ed 
only  what  might  happen  fubfequent. 

And  with  refpeft  to  the  defendant's  not  pay- 
ing the  notes,  which  it  was  in  the  condition  of 
the  bond  that  he  fhould  do — he  was  to  have,  a 
reafonable  time  to  do  it  in,  which  he  had  not, 
as  the  bond  was  fued  the  next  day  after  it  was 
given,  and  the  notes  were  at  New- York,  where 
the  promiffee  then  lived. 


397 

Hart 

againji 
BulL 


Deming  againjl  Norton. 

THE  declaration  fet  forth — That  one  WiU 
Ham  Warner,  of  New- Canaan,  in  the  ftate 
of  New- York,  was  indebted  to  the  plaintiff,  in 
the  fum  of  54/.  145.  by  promiflfory  note:  That 
the  plaintiff  was  about  to  inftitute  a  fuit,  for  the 
recovery  of  faid  debt,  when  the  defendant  inter- 
pofed,  and  propofed  to  become  furety  for  the 
payment  thereof,  if  the  plaintiff  would  not  com-- 
mence  his  fuit ;  and  that  the  defendant^  in  con- 
fideration  of  the  plaintiff's  forbearing  to  fue  faid 
WarneVy  then  entered  into  an  engagement,,  by 
him  written,  and  fubfcribed  on  the  back  of  faid 
note,  in  ihefe  words  : — "  I,  the  fubfcriber,  do 
*•  obligate  myfelf  to  pay  the  within  fum  of  mo- 
"  ney,  if  it  cannot  be  recovered  of  the  within 
"  named  William  Warner,''-  «  That  the  plain- 
tiff. 


TJf'here  one 

uiid<  rukcs 
to  pay  tic 
debt  of  ano- 
ther., in  cafe 
of  failure,  i£ 
the  c red f toe 
afterw.trds 
granrs  for- 
bcai  ancc  to 
the  debtor, 
it  exonerarcft 
the  promTs* 


39^  County  of  Hartford,  March  Term. 

iy88.     ^iff>  fome  time  after,  finding  faid  Warner  to  be 

.---.       -,     -j^  failing   circumftances,   commenced  his  fuit 

Deming     upon  faid  note,  before  the  fupreme  court  of  the 

Norton      ^^^^  ^^  New- York,   obtained  judgement  and 

execution;  but  that  Cdiid  Warner  had  become  a 

bankrupt,  and  nothing  could  be  obtained. 

On  fpecial  pleadings,  the  ifTue  joined,  and 
found  by  the  jury,  was — "  That  after  the  de- 
"  fendant  had  entered  into  the  engagement 
"  mentioned  in  the  declaration,  viz.  in  July  or 
**  Augud,  1783,  the  plaintiff  did  receive  a  horfe 
"  of  faid  William  Warner,  on  a  fpecial  agree- 
**  ment  and  condition,  that  he  fhould  fufpend 
•*  the  coUedion  of  faid  note,  for  the  fpace  of 
**  two  months  then  next  following  ;  and  there- 
•*  by  did  exonerate  the  defendant  from  the  pay- 
'*  ment  of  the  fame." 

The  plaintiff  moved  in  arreft,  principally  on 

the  ground,  that  the  iifue  was  immaterial. 

And, 

By  the  whole  Court. By  the  tcrm$ 

of  the  promife,  it  was  incumbent  on  the  plain- 
tiff to  ufe  proper  and  legal  endeavours  to  reco- 
ver the  money  of  Warner,  before  the  defendant 
c  )uld  be  liable; — but  it  appears  by  the  verdift, 
that  the  plaintiff,  for  a  valuable  confideration, 
agreed  to  give  further  time  of  payment  to  War-^ 
ner,  and  thereby  look  the  rifk  of  Warner's  abi- 
lity to  pay  upon  himfelf,  which  legally  exone- 
rated the  defendant  from  his  engagement. — 

Therefore,  tlie  iffue  found  by  the  jury  was  ma- 
terial, and  the  only  material  point  in  the  plead- 


ings. 


So  judgemeat  was  for  the  defendant. 


Chapman 


County  of  Windham,  March  Term.  59§ 

^7887 

Chapman  amhifl  Allen.  Zi         " 

^     -^  Chapman 

ERROR  from  a  decree  of  the  court  of  com-  ^g^^Ji 
mon  pleas,  fitting  as  a  court  of  chancery.  Al  en. 
The  dating  was  of  a  parole  agreement,  that  the 
petitioner  and  J,  Lewis  fhould  convey  certain 
lands  to  ihc  petitionee ;  and  that  he,  in  part  pay- 
tiient  therefor,  ftiould  difcharge  an  execution 
^gainft  the  petitioner,  in  favour  of  jf.  Sumner^ 
for  21/.  125.  4 J.  iffued  by  the  fuperior  court, 
for  cofts :  That  purfuant  to  this  agreement,  the 
land  was  conveyed,  and  a  bond  at  the  fame  time 
was  executed  by  the  petitionee,  with  intent  to 
indemnify  the  petitioner  againft  the  execution; 
but,  by  miftake,  the  execution  v/as  mifdefcribed 
in  the  bond^  as  being  againft  the  petitioner  and 
faid  Lewis,  when  in  faci  it  was  againft  the  peti- 
tioner only;  and  that  the  petitioner  had  been 
obliged  to  pay  the  execution,  and  in  an  aBion 
upon  his  bond,  had  failed,  by  reafon  of  the  mif- 
defcription.-— Praying  to  be  reimburfed  the 
amount  of  the  execution,  with  an  additional 
fum,  at  the  difcretion  of  the  Court,  for  his  full 
indemnification. 

Three  exceptions  were  taken  in  abatement  of 
the  petition  : — 

1.  That  relief  is  prayed  for,  againft  a  judge- 
ment of  the  fuperior  court,  which  the  common 
pleas  are  not,  by  ftatute,  competent  to  grant. 

2.  That  the  agreement  fet  up  refpe6ls  the 
fale  of  land,  and  being  parole,  is  within  the 
ftatute  of  frauds  and  perjuries. 

3.  That  it  is  contrary  to  the  exprefs  words 
of  the  bond,  by  which  the  party  muft  be  con- 
cluded. 

The  exceptions  were  adjudged  fuffxient,  by 
the  court  of  common  pleas,  and  the  petition 
difmifted; — but  the  decree  of  the  common  pleas 
vras  reverfed. For^  Br 


"1788. 


400  County  or  Windham,  March  Term. 

By  the  whole  Court. -As  to  the  firft 

exception — Though  the  execution  which  was 
Chapman    to  have  been  indemnified  agaiilft  was  upon  a 
tkgainft     judgement  of  the  fuperior  court  for  the  cofts, 
Allen.      jj^g  prayer  of  the  petition  is  not  to  be  relieved 
againft  that  judgement,    or  to  have  it  at  all  af- 
feQed.     And  with   regard   to  the  fubfequent 
judgement  for  cofts,  in  the  a61ion  upon  the  in- 
demnifying bond,   it  is  not  mentioned  in  the 
prayer  of  the  petition,  though  it  is  incidentally 
in  the  counting  part  of  it ;  and  forms  no  part  of 
the  ground  for  relief,   it  being  the  petitioner's 
own  folly,  as  the  bond  was  drawn  to  profecute 
ihe  fuitc 

As  to  the  fecond  exception— The  agreement 
:in  this  cafe  is  not  within  the  ftatute  of  frauds 
^nd  perjuries,  it  being  on  one  part,  and  that 
.which  the  ftatute  principally  or  folely  regards, 
ihe  conveyance  of  the  land,  executed,  which 
.renders  it  manifeft  injuftice  that  the  other  part 
ihould  remain  unexecuted,  and  takes  the  cafe 
out  of  the  reafon  of  the  ftatute,  which  was  de- 
figned  to  defeat  fuch  agreements  only,  no  part 
of  which  was  carried  into  execution,  and  fet  up 
merely  by  parole.  And  fo  has  been  the  con- 
ftrudion  of  the  ftatute  of  the  29th  Car,  II. 
from  which  ours  was  penned.  Stt  2  Stra,  783, 
and  cafes  refered  to,  1  Bac,  Abrid.  74. 

As  to  the  third  exception — That  the  agree- 
.  ment  fet  up  is  different  from  the  bond  : — The 
rule  of  law,  that  the  intent  of  parties  to  written 
.contraQs  is  to  be  learned  only  from  the  writings 
themfelves,  is,  in  fome  cafes  in  equity,  fo  far 
departed  from,  as  to  let  in  evidence  of  miftakes 
and  omiflions;  as  to  rebut  an  equity,  or  by  way 
of  obje8:ion  to  a  fpecific  performance,  as  in 
Joyncr's  cafcy  3  Atk.  388,  where  parole  evidence 
was  admitted  of  an  omiffion  ;  and  the  defence 
held  by  Chancellor  Hardwicke,  **  quite  equal 

"  whether 


ainjt 
Alisne 


County  of  Windham,  March  Term,  401 

^*  v^betber  tbe  omiffion  was  infifted  on  as  a  mif-  ^^88? 
*^  take  or  fraud."  And  in  Langley's  coje^  2  === 
Aih,  203,  it  is  recognized  as  a  general  prin-  Chapman 
ciple,  "  tbat  miftakes  and  mifapprebenfions  *^g' 
**  in  tbe  drawer  of  deeds,  contrary  to  tbe  de- 
^*  fign  of  tbe  parties,  is  as  much  a  ground  of  re- 
^*  lief  as  fraud  and  imporition  %'  wbich  goes  as 
far  as  tbe  prefent  cafe.  Here,  tbrough  a  mif- 
take  of  tbe  drawer  in  a  fingle  point  of  defcrip-* 
tion,  tbe  intent  of  tbe  parties  is  wbolly  fruf- 
trated,  and  manifeft  injuflice  is  done. 

Upon  neither  of  the  exceptions,  tberefore^ 
ought  the  petition  in  the  common  pleas  to  have 
abated. 


E 


in 


Gilbert  againjl  Marcy. 

RROR  from  a  judgement  of  the  court  of  qui  umffoc 

common   pleas.- -Marcy  exhibited  bis  ofa'^rr^^! 

complaint  qui  tarn,  before  a  Juftice  of  tbe  Peace  Lfnati^el 
in  the  county  of  Windham,  complaining  of  an  J^cutedfa 
affault  committed  in  tbe  county  of  Hartford. -r-  thtc.untjr 
The  caufe  came  before  the  court  of  common  compiai"- 
pleas,  and  on  demurrer  to  the  complaint,  judge-  ant  dwmis^ 
ment  was  for  tbe  plaintiff ;— and  the  judgement  ciime"  was^ 

was  affirmed. — —For,  commuted 

By   the   Court. -Tbe  exception  taken 

to  this  complaint,  under  tbe  general  demurrer, 
was — That  the  affault  being  alledged  to  have 
been  done  in  tbe  county  of  Hartford,  the  pro^ 
fecution  ought  to  have  been  there,  and  not  in 
the  county  of  Windham,  it  being  for  a  crimi- 
nal offence  : — But  there  is  no  ftatute  of  this 
ftate  limiting  tbe  trial  of  criminal  caufes  to  tbe 
county  where  the  fads  are  done ;  though,  for 
C  c  c  tbe 


in  anochec 
county» 


405J  COU  N  T  y   O  F  W I  N  D H  AM,  Kl  A^ C K  T E  R.M. 

'^Tbs!     ^^^  convenience  of  the  party  accufed,  and  the 

c:rr.rrrV-=^     witneffcs.  It  Is  reafonablc,  and  ought  not  to  be 

Gilbert     difpcnled  with,  in  prorecutions  in  behalf  of  th-e 

^g^'^J^      {late,  unlefs  fpecial  circumftances  render  it  dc- 

ivlarcy.      celfary.^ -But  this  being  a  profecution  for  a 

perfonal  injury,  by  the  party  aggrieved,  for  the 
recovery  of  his  damages,  may  be  brought  in 
the  county  where  he  dwells,  as  in  the  cafe  of 
civil  adions,  notwithflanding  there  is  a  fine  to 
be  infiiBed  upon  convidion.  And  fo  is  the 
pra6lice  in  England,  as  v/ell  as  in  this  ftate*-— 
Crokc  Ehz,  645. 


¥i  ALL  agaiTlfi  CrAI^  BALL, 

ERROR  from  a  judgement  of  the  court  of 
common   pleas.— The   original    aftion 

was  affumpfit,  in  which  the  plaintiff  declared — 
That  at  the  defendant's  requeft,  and  promife  to 
pay  him  the  Jiate's  bounty  of  6/.  he  entered  and 
performed  a  tour  of  duty  in  the  continental  ar- 
my :  That  the  defendant  informed  him  the 
bounty  was  in  the  hands  of  Ebenezer  Backus^ 
Teady  to  be  paid,  and  gave  him  an  order,  on  or 
about  the  30th  day  of  Auguft,  1780,  as  fol- 
lows : — "  Sir,  pay  Chrijlopher  'Crandall  his  ftate 
**  bounty,  and  th^  blanket-money  you  will  ac- 
**  count  with  me  for.  In  fo  doing,  you  will 
**  oblige  your  humble   fervant, — Samuel  HalL 

*^  To   Ebenezer  Backus^  Windham.'* -That 

the  plaintiff  ^\foon  after''  prefented  the  order 
to  faid  Backus^  who  refufed  to  pay  it,  of  which 
he  ^^  foon  after''''  gave  the  defendant  notice;  af- 
ter which,  viz.  on  the  30th  day  of  June,  ijB^Ji 
the  defendant^  in  confideratiorf  of  his  being  li- 
able 


County  of  Windham,  March  Term. 

able  to  pay  the  contents  of  faid  order,  alTumed 
upon  himfelf,  and  promifed  to  pay  the  fame, 
&c. 

Non-aJJumpfit  was  pleaded,   and  ifTue  clofed      agamft 
to  the  court,  who  found  for  the  plaintiff.  Crandall. 

The  only  queftion  in  error  refpeded  the  fuf- 
ficiency  of  the  declaration,  there  being  no  time 
fpeciiied  when  the  order  was  prefented,  nor 
when  the  defendant  was  notified  of  the  non- 
payment^  but  only  that  it  wasyoo?z  afttr. 
The  judgement  was  affirmed. 

By  the  Court.-— — In  a  declaration  againll 
the  drawer  of  a  bill  of  exchange,  it  is  doubdefs 
neceffary  to  fet  forth  with  precifion  the  time 
when  the  bill  was  prefented  for  payment,  that 
k  may  appear  that  the  payee  has  u fed  due  dili-^ 
gence ;  and  upon  a  demurrer,  it  would  be  ill 
■without  it :  So  it  would  in  every  fpecial  af- 
fumpfit,  without  a  confide  ration  fet  forth  ;  bu£ 
the  want  of  certainty  in  either  cafe  is  curable 
by  a  verdiB:.-:— — As  there  can  be  no  promife 
in  law  without  a  confideration,  it  fhall  be  in- 
tended,  when  the  jury  have  found  the  promife, 
that  a  confideration  was  proved.  So,  as  there 
can  be  no  promife  rai  fed  again  ft  the  draw^er  of 
a  bill,  unlefs  the  payee  has  uied  due  diligence 
to  obtain  the  money  of  the  drawee,  and  has 
failed,  it  fhall  be  intended,  if  the  promife  is 
found,  that  there  was  proof  of  due  diligence 
ufed,  and  that  the  bill  was  prefented  in  due 
feafon^,  though  the  averment  in  the  declaration 
be  only,  as  in-  this  cafe,  that  it  was  prefeiited 
^on  after  it  was  received. 

The  ordei^,  however,  in  this  cafe,  does  ViOi 
appea^r  ta  be  m  nature,  or  within  the  reafon  of 
a- bill  of  exchange  j  it  is  not  expreffed  for  va- 
Bee  yeceived',  nor  avered  to  have  been  in  ex- 
im^^^Km'&k  of  SHI  anteGedent  d^^be  op  duty  j 

and 

C  C  C  2 


788. 


4©4  County  of  Windham,  March  Term. 

and  was  but  a  mere  authority  to  receive  the 

money  of  Backus, 

Hall  And  as  the  money  has  not  in  faft  been  paid, 

aj^^r^yr     whether  the  order  has  ever  been  pfefented  or 

Crauwiaii.    ^^^^^  the  original  promife  of  the  defendant  to 

pay  the  bounty,  or  fee  it  paid,  ftill  remains  in 

force,   and,  being  fet  forth  in  this  declaration, 

is  fufficient  to  warrant  the  judgement,  indcpen- 

deut  of  any  tranfaftions  relative  to  the  order. 

jfudge  Dyer,   dijfenting, llii^  afc^ion   i>a. 

not  grounded  on  the  original  contra^,  but  on 
an  implied  alfumpfit,  arifing  from  the  non-pay- 
ment of  the  order: — But,  from  the  ftating  in 
the  declaration,  no  fuch  promife  can  arife,  the 
order  being  but  a  bare  authority  to  receive  the 
mon^y  ot Backus ;  and  the  finding  of  the  jury 
cannot  aid  a  declaration  fo  materially  defec- 
tive* 


Place  a^alnji  Lyon. 

ERROR  from  a  judgement  in  the  court  of 
common   pleas. The  original   adion 

was  on  a  note,  for  one  hundred  Spanifii  milled 
dollars,  with  intereft,  dated  9th  March,  1785* 
The  defendant  pleaded  to  the  jurifdiclon — 
That  the  parties,  at  the  impetration  of  the  writ, 
were  both  inhabitants  of  the  ftate  of  Rhode- 
Ifland;  and  that  the  defendant  was  only  occa-, 
ftonally  in  this  ftate  at  the  time  when  the  writ 
was  ferved  ; — but  the  plea  was  over-ruled. 

The  defendant  then  pleaded  in  bar — Thai 
by  a  certain  ftatute,  paiTed  by  the  legiflature  of 
the  ftate  of  Rhode-^Iftand,  at  their  feffion,^  in 
May,  A.  D,  1786,  for  smiting  a  fum  in  paper 

bills. 


County  of  Windham,  March  Term.  405 

bil'sy    ^iud  regulating  the  difpofition  thereof  1     "~i"7g37 
among  other  things,  it  ftands  enattcd— *'  That     =^=^=5 
*'  the  laid  hills  fhall  be  a  good  and  lawful  ten-       Piace 
**  dcTy   for  the  coraplete  payment  and  final  dif-      r_gfiinjf 
"  charge- of  ail  debts  now  due'  and  contrafiedi        ^^"' 
**  and  that  may  hereafter  become  due  and  be- 
**  contracted;  and   for  the  final   and  full  dif- 
•^'charge  of  all  fines   and  forfeitures,  judge- 
'*  ments  and  executions,  now  had,  become  due,- 
**  and   recovered,  .  of  every  nature    and  kind 
*•  whatfoever,  v^'ithin  this  itate. 

**  That  if  any  creditor  or  creditors^  their 
<*  lawful  agent,  or  attorney,  fhall  refute  to  re- 
•'  ceive  any  of  the  aforefaid  bills,  in  diicharge 
*^  of  any  debt  or  demand — that  then  and  in  that 
**  cafe,  it  (kali  and  may  be  lavv'ful  for  the  faid 
*^  debtor  to  make  application  to  a  juftice  of  the 
**  fuperior  court  of  judicature,  &c.  or  to  any 
•^  juftice  of  the  inferior  court  of  common  pleas, 
**  of  the  county  wherein  faid  debtor  lives,  or  is 
**  refident ;  and  the  faid  juftice,  upon  foch  ap- 
**  plication,  fhall  grant  a  citation,  (and  here  foU 
"  lows  the  fivm  of  the  citation)  which  is  to  be 
"  ferved  by  the  officer  perfonally  upon  the  ere- 
*^*  ditor,  or  his  agent,  or  attorney^  or^-  in  cafe  of 
•*  abfence,  by  leaving  an  attefted  copy  of  the 
*^  fame  at  the  creditor's,  his  agent's,  or  attor^ 
**  ney*s  laft  and  ufuaS  place  of  refidence^  or 
**  abode.  And  in  cafe  the  faid  creditor,  his 
*V  agent  or  attorne)^  after  having  had  fuch  no« 
•*  tice,  does  not  appear,  agreeable  to  the  faid 
**  citation,  the  faid  juftice  (ball  give  a  ceitifi-*' 
**  cate,  expreiTing  the  lodging  of  faid  money  in 
*'  the  hands  of  faid  juftice;  and  the  faid  certii. 
**  ficate  (hall  be  a  fufticient  plea  in  bar  to  all 
**  and  every  a&ion  and  anions  that  fhall  or 
••  may  be  brought  for  the  recovery  of  money 
**  fo  lodged  and  tendered,  and -Ihall  forever 
**  ©perskU  as  a  difcharge  and  a  bona-fide  pay, 

nieiit 


Lyon. 


4P^  County  of  Windham,  March  Term. 

""7881     *'  i?ient  of  faid  debt,  in  all  and  every  Qourt  and 

^^•^  '  —     "  €ourts,  having  jurifdidion  in  this  ftate.'' 

Place  And  that,  on  the  7th  day  of  December,  1786, 

i^v^l^     he  tendered  to  the  plaintiff  the  contents  of  faid 

note,  and  lodged  the  fame,  agreeably  to  the  di- 

lections  of  faid  ftatute. 

To  this  plea  there  was  a  demurrer,  and  join-^ 
der  in  demurrer ;  and  judgement  for  the  plain- 
tiff. 

Upon  both  points  the  judgement  was  affirm- 
ed.  ^For, 

By  the  whole  Court. As  to  the  plea 

in  abatement — it  was  not  fufficient : — The  ac- 
tion being  for  a  debt,  which  depended  not  on 
local  laws  for  its  creation,  was  in  its  nature 
tranfitory,  and  followed  the  perfon  of  the  debt- 
or; and  citizens  of  any  other  of  the  United 
States  have,  by  the  articles  of  the  confedera- 
tion, the  fame  right  to  fue  hefe  as  citizens  of 
this  ftate.  If  the  fuit,  as  fuggefted,  was  vexa- 
tious, the  defendant  has  his  remedy ;  but  whe- 
ther it  was  fo  or  not,  was  not  triable  upon  his 
plea  of  abatement. 

As  to  the  plea  in  bar— *it  appears  that  the  con^. 
tra8:  was  for  filver  money,  and  fpecifically  fof 
dollars ;  a  tender  of  billSy  therefore,  was  not  2t 
fulfilment.  The  ftatute  declaring  the  bills  a 
tender,  was  fubfequent  to  this  eontraS,  and 
could  not  have  a  retrofpeftive  operation  to  va* 
i^y  and  defeat  it,  however  it  might  atted  thofe 
made  after  the  law  was  promulgated.  It  is  a 
l-undamental  principle  of  jurifprudenee,  thatd** 
foft  faBo  laws,  declaring  criminal  what  was  not 
fo  when  the  fa8s  were  done,  or  impeaching 
contrails  lawfully  made,  are  inoperative ;  w-liifch 
principle  a  court  of  juftice  is  not  at  liberty  td 
depart  from,  efpecially  to  give  efficacy  lo  tht 
inftitutions^  of  a^  foreign  jurifdidion. 

;       .1  Apthorv 


County  of  New-London,  Feb.  Term.  40^ 

Apthorp  ^^^e'7z/2  Backus.  ~~      " 

IN  this  aclion,  the  plaintiff  was  defcribed  by  ^i^'^'A 
the  name  of  ''Henrietta  Apthorp,  of  the  ^^-^"^^^ 
**  ifland  of  Jamaica,  in  the  Weft-Indies,  a  mi-^ 
*'  nor^  of  the  age  of  fixteen  years,  who  fues  by 
•*  Perez  Morton,,  Efq.  of  Bofton,  in  the  county 
*^  of  Suffolk,  and  commonwealth  of  MaflTachu- 
'*  fetts,  her  next  friend  and  guardian.^* — ^Thea 

followed  the  declaration,  in  thefe  v/ords  :- 

'*  That  to  the  plaintiff  the  defendant  render  the 
**  feifin  and  peaceable  poffefTion  of  a  certain  lot 
^*  or  parcel  of  land,  with  the  buildings  thereon; 
**  which  lot  confiils  of  about  oae  eighth  part  of 
*'  an  acre  in  quantity,  is  fituated  at  a  place  caU 
**  led  Chelfea,  or  Norwich  Landing  (then  de- 
"  /bribing  the  boundaries)  and  is  the  fame  eftate 
**  which,  on  the  18th  day  of  February,  A.  D^ 
*'  1768,  was,  by. deed  of  mortgage,  conveyed 
**  by  Eleazer  Fitch,  Efq.  of  Windham,  in  the 
•*  eoumy  of  Windham,  to  Mr.  Stephen  Apthorp^ 
**  then  of  Briftol,  in  the  kingdom  of  Great- 
"  Britain,  but  late  of  faid  ifland  of  Jamaica^, 
**  now  deceafed,  as  by  the  records  of  faid  tov/a 
^*  of  Norwich  may  appear ;  which  faid  Stephe.% 
*^  when  in  life,  was  parent  of  the  faid  Henrietta. 
*'  Of  which  defcribed  premifes  the  {^id  Stephen 
"  being  in  full  life,  on  the  2d  day  of  May,  A.  D. 
^^  1770,  became  well  and  legally  feifed,  in  his 
**  own  right,  in  fee,  and  fo  thereof  continued  to. 
*'  be  feifed  and  poffeffed,  until  the  day  of  his 
^'  death,  which  happened  on  or  about  the  firfl 
<*  day  of  January,  A.  D.  1773,  when  the  faid 
f*  Stephen  died,  leaving  iffue  and  only  heir  the 
**  forenamed  Henrietta;  who  thereupon,  at  the 
*'  death  of  her  faid  parent,  by  virtue  of  her 
^'  right  of  inheritance  in  the  demanded  pre- 
*^  mifes,  by  her  faid  next  friend,  became  im- 
*'  mediately 


Backus. 


408  County  of  New-London,  Feb. .Term. 

iVsl;     '^  mediately  well  and  le.gally  feifed,  in  her  own 

.r=sT. — =     *'  right  in  fee,  of  the  fame  eftate,  ^ind  thereof 

Apthorp    *•  continued  feifed  and  poffefled,   until  on  or 

^fT?f      '^  ah  out  the  firft  day  of  January,  A.  D.  1774  ;  at 

"  which  time  the  defendant,  with  force  and  arms, 

'^  entered  into  faid  defcribed  premifes,'  againft 

^^^law  and  without  right,  and  dilfeifed  the  piajn- 

^'  tiff  thereof,  and  put  her  out  therefrom,  and 

*'  every  part. thereof,  defcribed  as  aforefaid  (ex- 

'^'.cepting  two  (lores  ftanding  on  faid  land,  and 

"  the  land  covered  by   faid  ftores;)   and  ever 

^-  fmce  the  defendant  hath  and  ftill  doth  con- 

.^'  tinue  to  deforce  and  hold  the  plaintiff  out 

^*  therefrom,  taking  to  himfelf  the  whole  profits, 

•"^^  life,  and  improvements  of  the  demanded  pre- 

"  miles,  to  this  time ;  to  the  damage  of  the  plain- 

^'  tifFthe  fum  of,&c.  to  recover  which,  together 

**  with  the  feifin  and  quiet  poffeflion  of  faid  de- 

'*  manded  premifes,  and  his  coft,  fhe  brings  this 

*'  fuit,"  &c. 

The  general  iffue  was  pleaded,  and  a  verdiB: 
for  the  plaintiff. — The  defendant  moved  in  ar- 
reft  of  judgement,  and  affigned  five  reafons  :— 

1.  That  the  plaintiff's  appearance  in  the 
caufe  was  by  attorney,  whereas  it  ought  to  have 
been  by  her  guardian,  or  next  /riend,  admitted 
by  rule  of  court ; — and  therefore,  there  was  no 
legal  appearance  on  the  part  of  the  plaintiff. 

2.  That  the  declaration  is  infufficient  to  found 
aay  judgement  upon ;  for  that  it  appears  the 
plaintiff  is  an  alien ; — and  therefore,  cannot,  by 
law,  hold  or  recover  any  real  eftate. 

3.  That  the  declaration  is  inconfiftent  and 
contradiBiory,  in  one  part  demanding  the  whole 
of  which  fhe  declares  herfelf  to  have  been  feifed, 
and  in  another  part,  demanding  lefs. 

4.  That  the  verdi6l  is  inconfiftent  and  uncer- 
tain;  for  it  finds  the  defendant  guilty  of  diffefing 
the  plaintiff  in  manner  and  form,  and  for  her  to 

recover 


Baakus 


County^  OF  ^fEw^LoNDON,  Feb.  Term;  409 

tecover  the  demanded  premifes,  which  is  more     '^T^^ 
than  by  her  own  (hewing  ihe  is  entitled  to.  -r-.',  ^^^ 

5.  That  the  jury  were  equally  divided,  and  Apthorp 
never  did  agree  to  return  faid  verdiB  as  being 
binding  and  conclufive  ;  but  they  agreed,  that 
two  verdicts  fhouid;  be  wrote,  and  both  com- 
mitted to  the  foreman,  and  when  called  upon 
for  their  verdi61,  the  one  in  favour  of  the  plaiii^ 
tiff  ftiould  be  delivered,  and  if  not  accepted  by 
the  court,  then  the  other  verditl  iliouid  be  de* 
livered  up. 

But  the  motion  was  ruled  infufficiento 
''    By  Law,    CJiief  Jujiice^  2iX\A  yiidge   Ells-- 

WORTH. The  firft  exception  is— That  there 

has  been  no  legal  appearance  on  the  part  of 
the  plaintiff:—^ 

The  writ  is  expr^ffed  in  tbefe  words:    "  To 
**  anfwer  to  Henrietta  Apthorpy   a  minor,  who 

fues  by  Perez  Morton^  Efq.  her  next  friend 
**  and  guardian  ;"  and  the  replication  is  figned^ 
and  the  iffue  clofed  by  the  faid  Perez  Morton^ 
as  guardian. — So  that  the  fuit  and  appearance 
are  good  as  by  common  guardian. 

If,  however,  the  fuit  and  appearance  are  con-- 
fidered  ^s-hy  proc-hei7i  amy,  becaufe  the  term 
next  friend  is  aifo  ufed  in  the  declaration,  and 
may  denote  the  fpccial  kind  of  guardianfhip  in- 
tended, ftill  they  are  good  :  For  though  we  have 
no  ftatute,  as  there  was  originally  in  England, 
authoriiing  fuits  by  prochein  amy,  yet  long  prac-' 
tice,  and  the  reafon  of  the  cafe,  are  fufficient. 
It  is  for  the  benefit  of  infants  who  have  no 
guardians,  or  fuch  as  from  particular  circum- 
ftances  cannot  or  will  riot  fue  for  them,  as  the 
cafe  may  require,  to  admit  their  fuits  hy  pro- 
chein amy  ;  whofe  power  and  relponfibility  re- 
lative thereto,  are  the  fame  as  guardians  :  And 
there  can  be  no  danger  to  the  infant  from  fuch 
praftice  ;  for  the  court  under  whofe  infpe6lion 
^--  D  d  d  the 


410  County  o^  Nev/-Lokdon,  Feb.  Tj^rm, 

==Tog*     the  fuit  is  profecuted,  is  bound  to  take  care  for 

__2__:     i)^Q  infant ;  and  if  the  prochcin  amy  is  not  a  re- 

Apthorp    fponfible  and  proper  perfon,  or  mifcondufts  the 

cgain/i     fuit,  or  inftitutes  one  not  apparently  for  the  be- 

Backus,     nefit  of  the  infant,   will  difplace  him,  and,  if 

need  be,  appoint  another. 

It  is,  indeed,  the  duty  of  Judges  of  Probate 
to  fee  that  infants  v/ho  need  guardians  have 
them  ;  but,  through  want  of  information,  or 
for  other  reafons,  they  frequently  fail  to  do  it. 
Their  neglecl  (hould  not  prejudice  the  infant, 
or  deprive  him  of  the  benefit  of  a  friend,  who 
may  be  willing  to  ftep  in  and  proted  him  in  a 
particular  fuit ;  and  if  the  infant  does  not  hap- 
pen to  live  or  refide  within  any  of  their  refpec- 
live  diftriQs,  as  is  the  cafe  here,  they  are  not 
authorized  by  the  ftatute  to  appoint  a  guardian 
for  him.  If  the  infant  in  this  cafe  had  a  guar- 
dian by  whom  (he  might  have  fued,  and  has 
not,  it  mud  have  been  taken  in  abatement,  if 
at  ail. 

It  is  further  obje^ed  here — ^That  there  is  no 
record  of  the  admiflion  of  the  prochein  amy>-^ 
liy  the  praBice  of  this  Court  (and  it  is  a  matter 
to  be  governed  by  pra6lice,  and  the  mode  of 
procefs)  it  is  not  neceffary  there  (hould  be;  it 
is  enough  that  it  appears  from  the  files  and 
pleadings,  -which  become  parcel  of  the  record, 
that  he  doth  in  fa8:  profecute.  This  is  fuffici- 
ent  to  fatisfy  the  Court,  and  to  render  the/ro- 
clidn  amy  refponfible  to  the  adverfe  party  for' 
cofts,  and  to  the  infant,  for  the  conducting  and 
confequences  of  the  fuit. — As  to  the  practice 
fettled  in  the  courts  at  Weftminfter-Hall : — 
In  the  common  pleas  there  is  a  record  of  the 
admiflion  ;  in  the  king's  bench  there  is  not, 
but  only  a  recital  of  it  in  the  declaration — 
J,  5.  per  A.  B.  guariianum  fuum  ad  hoc  per 
cur.fpecialiter  adviijjmi  queritur,  (3c,    (Vide  3 

BaCf, 


County  of  New-London>  Feb.  Term. 

Bac,  Ahrid.  149,  and  authorities  there  refer cd  to) 
And  if  the  entry  only  is  per  guard ia7ium  fumn^ 
omiting  the  claufe  ad  hoc  per  cur,  fpecialiter  ad-^ 

mij/um,  ftill  it  is  good  (Carth.  256.)= In  the 

court  of  chancery  there  is  neither  a  record  nor 
a  recital  of  it ;  and  the  admiffionj  as  in  our 
courts,  is  merely  a  tacit  one.- — Any  perfon  who- 
will  befriend  the  infant,  brings  a  bill  sls  p7'o~- 
chein  amy  to  him,  without  his  confent,  or^  any. 
appointment  of  court;  and  if  the  court  difap- 
prove  of  him,  or  of  his  proceedings,  they  dif- 
mifs  him,  and,  if  need  be,  appoint  another;  and 
if  two  happen  to  fue,  that  fuit  is  fuftained  which 
appears  moil  for  the  benefit  of  the  infant,  and 
the  other  is  difmiifed — 3  Bac,  Ahrid.  i^g—Str. 

708, — 3  Aik,  603. In  this  itate,  the  decla^ 

ration  is  parcel  of  the  writ,  and  the  prochein 
amy  is  therefore  named  in  the  writ,  as  in  a 
chancery  bill,  and  begins  to  atl  when  the  writ 
is  prayed  out,  and  before  the  court  fits,  that  is 
to  have  cognizance  of  the  fuit ;  nor  are  there 
courts  here  continually  open,  who  might  ad=- 
mit  or  appoint  him  previous  to  the  fuit's  being 

commenced. The  prochein    amy  comes  in 

therefofe  here,  as  in  chancery  in  England, 
without  any  previous  appointment,  or  formal 
admilHon  ;  and  if  the  court  difapprove  of  him, 
they  will,  upon  motion,  or  without,  when  he 
comes  to  appear,  or  in  any  ftage  of  the  fuit, 
difplace  him,  and  if  the  cafe  requires  it^  ap=- 
point  another. — Tacit  admiflion,  from  the  na- 
ture of  the  cafe,  and  the  mode  of  procefs  here 
ufed,  is  fufhcient,  and  all  that  practice  has  made 
neceffary. 

If,  however,  a  formal  admiflioni  and  a  re- 
cord of  it,  in  nature  of  a  warrant  of  attorney, 
wer£  neceffary  to  authorize  the  appearance  of 
2l prochein  amy,  n  would  be  too  late  to  take  ad- 
vantage of  the  want  of  them  after  verdift. — 
D  d  d  3  Want 


411 

Apthorp 
Backus. 


^12  County  of  New-London,  Feb.  Term. 

'^i^lr     Want  of  warrant  of  attorney,  whkh  is  a.  defeat 
gr^-w-^     of  as  high  a  nature,    and  of  the  fame  kind,  is 
Apthorp    helped  after  verdift,  by  the  Englifli  ftatutes  of 
agaifiji     Jeofails,  18  Eliz. — Sti'd,  305. — And  by  the  fta^ 
Backus,     'j^^g  ^f  Jeofails  of  this  ftate,  which  is? remedial, 
would  Be  helped  here,  if  neceflary  ;  though,  by 
the  more  loofe  pradice  of  this  ftate,  the  record- 
ing or  filing  warrants  of  attorney  is  not  in  ufe. 
A  record,  therefore,  of  the  formal  admiffion  of 
the  prochein  ^wr,  cannot  be  neceffary  to  validate 
his  appearance  in  the  prefent  ftage  of  this  cafufis. 
It  is  further  objefted — That  appearance  in 
this  cafe  for  the  plaintiif  hath  been  by  attcF- 
ney  : — Ir^  the  court  of  commt>n  pleas,    where 
the  form  of  entering  the  appearance  is  not  now 
material,  if  it  has  been  regular  in  this  court,  it 
appears  that  pleadings  were  figned  for  the  plain- 
tiff by  attornies,  though  the  judgement  there 
was  of  a  fuit,   as  expreffed  in  the  declaration, 
by  next  friend  and  guardian  :— But  if  plead- 
ings had  been  fig^ied  for  the  plaintiff  by  attor- 
nies in  this  court,    (till  the  appearance,  aS'We>lI 
as  the  fuit,  might  be  considered  as  by  prochein 
amy^  or  guardian ;  for  there  is  no  good  reafo^n 
why  they  fhould  be  obliged  conftantly  to  ap- 
pear in  perfon,  and  may  not  appoint  an  attor- 
ney, to  attend  and  condu6l  the  fuit  for  them; 
though  an  infant  has  not  difcretion  for  fuch  an 
appointment,  they  have;  and  it  would  be  de- 
trimental to  the  infant,    and  inconvenient  in 
pradice,  if  they  could  not  make  ufe  of  it. 

If,  hovv^ever,  the  appearance  in  this  cafe  has 
been  merely  by  an  attorney,  and  an  attorney  ap- 
pointed by  the  infant,  though  if  it  had  been  ob- 
jeded  to  before,  which  it  does  not  appear  to 
have  been  in  this  court,  it  would  have  been  iH; 
yet  no  advantage  can  be  taken  of  it  after  ver- 
did  in  the  infant's  favour.  So  is  the  Englilh 
law  declared  by  the  ftatute  of  Jeofails,  of  21ft 

J^c.  I. 


County  OF  New-London,  Feb.  Term*.  413 

Jac,  I. — and  the  ftatute  of  Jeofails  in  this  ftate     "^jT^gf^ 
extends  as  far  ; — and  the  rule  is  founded  in  the     ===--=3 
reafon  of  the  cafe,  and  would  hold  without  the    Aptborp 
aid  of  any  ftatute  :   For  the  only  reafon  why  a     ^^""y"-^ 
minor  is  to  fue  by.  guardian,  or  pro chein  amy^  is,       ^^  ''^^* 
that  his  fuit  may  not  fuffer  through  his  want  of 
difcretion  to  appoint  an  attorney,  or  Gonda£t  it 
himfelf ;  but  if  it  hath  in  fa6:  been  conduced 
to  a  fuccefsful  iffue,   though  by  himfelf  or  his 
attorney,   the  defign  of  the  law  is  anfwered. — - 
And  the  minor  ought  not,  bec-aufe  he  bath  ob- 
tained a  verdiO:  with  lefs  aid  than  the  law  would 
have  given  him,v  loofe  the  benefit  of  what  he 
hath  obtained,  and  be  put  in  a  worfe  condition 
than  if  he  was  of  full  age.— -Which  way  foeverj^ 
therefore,  the  appearance  in  this  cafe  hath  been, 
it  is  good  now. 

The  fecond  exception  moved  in  arreft,  is= — 
That  the  declaration  is  ill ;  becaufe  tne  p]ain=» 
tiff  is  an  alien ;  and  cannot^  the refoxej>,- main- 
tain a  real  aBion  : — 

A  fl:ate  may  ^.-exclude  aliens- from  acquiring 
property  within  it  of  any  kind,  as  its  fafety  or  ^ 
policy  may  diretl ;  as  England  has  done,  with. 
regard  to  real  property,  faving  that  in  favour 
of  commerce,  alien  merchants  may  hold  leafes 
of  houfes  and  ftores,  and  may,  for  the  recovery 
of  their  debts,  extend  lands,  and  hold  them,  and 
upon  oufter  have  an  affize.  Bytr^  2,  6. — Bac. 
Abrid.  84. — But  it  would  be  againft  right,  that 
a  divifion  of  a  ft;ate  or  kingdom  ihould  work  a 
forfeiture  of  property,  previoufly  acquired  undir 
its  laws,  and  that  by  its  own  citizens  ;  whix:h  is 
the  cafe  here. — The  plaintiff's  title  to  the  land 
in  queftion  accrued  while  fhe  was  not  an  alieB, 
jior  could  fhe  be  affected  by  the  difability  of  an 
alien,  but  was  as  much  a  citizen  of  the  now  ilate 
of  Connedicut,  as  any  perfon  at  prefent  within 
it^  and  her  defcem  was  caft  under  its  laws  ; — 

her 


Backus. 


414  County  of  New-Londoi^,  Feb.  Term. 

'^Tgg^    her  title  is  alfo  fecured  by  the  treaty  of  peace, 
===-==     which  ftipulates,  that  there  fhould-be  no  fur- 
Apthorp    ther  forfeitures  or  conBfcations,  on  account  of 
D^lf''-f     ^be  war,  upon  either  fide. 

The  fubfequent  ftatute  of  this  ftate>declaring 
aliens  incapable  of  purchajfing  or  holding  lands 
in  this  ftate,  does  not  afFe6l  the  plaintiff's  titile, 
otherwife  than  by  recognizing  and  enforcing  h ; 
for  it  hath  a  provifo,  that  the  "  a6l  (hall  not  be 
"  conllrued  to  \'?ork  a  forfeiture  of  any  lands 
"  which  belonged  to  any  fubjefts  of  the  king 
"  of  Great-Britain  before  the  late  war,  or  to 
"  prevent  proprietors  of  fuch  lands  from  felling 
**  and  difpofing  of  the  fame  to  any  inhabitant  of 
"  any  of  the  United  States.'* — It  is  not,  indeed, 
exprefsly  faid,  that  the  proprietors  of  fvich  lands 
may  maintain  anions  for  the  pofleffion  of  them, 
but  this  is  clearly  implied;  for  lands  without  the 
poffeffion  are  of  no  ufe  ;  and  wherever  the  law 
gives  or  admits  a  right,  it  gives  or  admits  alfo 
every  thingjncident  thereto,"  as  neceffary  to  the 
enjoyment  and  exercife  of  that  right : — And  be- 
fides,  they  cannot  fell  their  lands  till  they  firft 
get  poiTeffion  of  them ;  for  all  fales  of  land  ia 
this  (late,  whereof  the  grantor  is  difpoffeffed, 
except  to  the  perfon  in  pofleffion,  are,  by  ex- 
prefs  ftatute,  void — So  that  the  plaintiff  is  not 
barred  of  her  title,  or  right  of  adion,  either  at 
common  law,  or  by  ftatute. 

Another  exception  to  the  declaration,  is — 
That  the  plaintiff  demands  more  land  than  fhe 
has  ftiown  herfelf  to  have  been  diffeifed  of  :— 
The  declaration,  or  declarative  part  of  the 
writ,  is— That  the  plaintiff  was  feifed  of  a  cer- 
tain lot  of  land:  That  the  defendant  has  dif- 
feifed  her  of  the  whole  lot,  except  what  is  co- 
vered by  two  certain  ftores;  to  her  damage,&c. 
and  concludes,  "  to  recover  which,  together 
with  the  feifin  of  the  faid  demanded  jjremifes'* 

Sec— 


County  of  New-London,  Feb.  Term* 

&c. — The  word  demanded  may  here  "well  be 
rejected,  as  farplufage ;  and  they^zi  premifes 
will  be  thofe  laft  mentioned,  viz.  the  lands  the 
defendant  withholds.  If  the  word  demanded  be 
retained,  the  reference,  regard  being  had  to  the 
fubje6l  matter  and  the  fenfe,  may  fairly  be  the 
fame  ;  and  after  verdift,  that  conftru6lion  is  to 
be  adopted  which  beft  fupports  the  declaration. 
But  if  the  demand  is  in  fad  of  more  lands  than 
the  plaintiff  has  fet  forth  a  diffeifin  of,  it  is,  ne- 
venhelefs,  good  for  what  (he  has  fo  fet  forth  ^ 
and  the  declaration  would  have  been  good  upon 
demurrer. 

A  fourth  exception  is  to  the  verdiB— That 
it  gives  the  plaintiff  more  than  from  the  decla- 
ration fhe  had  a  right  to  : — 

The  verdift  is-— That  the  defendant  is  guilty^^ 
as  the  plaintiff  has  alledged  ;  and  therefore,  that 
the  plaintiff  fhall  recover  the  feiiin  and  poffef-^- 
fion  of  the  demanded  premifes,  v/ith  one  fhilling 
damage,  and  her  cofl. — By  demanded  premifes 
here,  whatever  inaccuracy  there  may  be  in  the 
declaration,  is  fairly  to  be  intended  (and  the 
moft  favourable  intendments  are  always  to  be 
made  in  fupport  of  verdicts)  the  premifes  in 
difpute  between  the  parties,  which  is  what  the 
defendant  is  faid  to  have  deforced  the  plaintifF 
of,  and  which  alone  the  iffue  of  not  guilty  re- 
fpeded.  It  would  be  ftuUifying  the  jury  tp 
fuppofe  they  meant  any  thing  more. 

If  the  jury,  bccaufe  they  have  found  the  de- 
fendant guilty  of  the  diffeifin  he  was  charged 
with,  have  gone  farther,  and  infered  that  the 
plaintiff  fhould  recover  more  land  than  the  de- 
fendant was  guilty  of  difleifing,  this  wrong  in- 
ference does  not  hurt  the  verdid ;  it  is  not  a 
material  part  of  it.  It  was  enough  for  the  jury 
to  find  the  defendant  guilty,  and  the  damages  j 
the  iffue  went  no  farther  i  and  this  was  enough 

for 


415 

Apthorp 

againft 

Baekusc 


4i6  County  OP  NEw_LoNDONVl?EBi'TERM* 

'^Tgg^     for  the  Court  to  render  a  judgement  upon. — • 
as;=-i — 1     As  in  2iqui  tarn  profecution  for  theft,  it  is  enough 
Apthorp    for  the  jury  to  find  the  defendant  guilty,  and  the 
again/}     value  of  the  goods  ftolen,  without  adding,  that 
Backus.     ^YiQ  owner  (hall  recover  three-fold  the  value  of 
them.     Or  in  an  adion  of  account,  upon  the  if- 
fue  of  not  bailiff  and  receiver^   it  is  enough  for 
the  jiiry  to  fay,   that  the  defendant  was  bailiff 
and  receiver,  without  adding,  and  therefore  that 
he  fliall  account. — -It  is  the  duty  of  the  Court 
to  make  the  legal  inferences  from  the  fa6ls  put 
in  iffue,  andfound  by  the  jury,  and  to  difregard 
the  inferences  made  by  the  jury,  if  they  happen, 
as  is  fuppofed  in  this  cafe,    to  be  made  wrong. 
Stra,  1036. — Hob.   54. — Doug,   361. — So  that 
whether  the  jury  have  infered  that  the  plaintiflp 
^ught  to  have  recovered  more  land  than  they 
find  the  defendant  guilty  of  withholding  from 
her,  or  not,  does  not  affe6l  the  validity  of  the 
verdiB.     There  is  enough  well  found  to  ren- 
der a  judgement  upon;  dnid  utile  per  in  utile 
nonvitiatur. 

As  to  the  other  exception  to  the  verdiO: — 
That  it  was  alTented  to  by  fome  of  the  jury, 
upon  an  underftanding  and  agreement,  that  if 
the  Court  fhould  not  accept  it,  a  verdi6l  fliould 
be  given  for  the  defendant : — 

Admitting  the  fads  to  be  fo,  as  the  Court 
did  accept  it,  it  was  good,  and  had  the  abfolute 
affent  of  the  jury,  upon  the  principle  the  objec-- 
tion  goes.  This  exception  hasoften  been  over- 
ruled.— — When  a  jury  have  given  in  a  verdi£l  • 
upon  oath,  and  aflented  to  it  in  court,  they  can- 
not afterwards  be  received  to  fay,  that  they  did 
not  agree  to  it ;  and  it  is  not  material  to  the 
verdiS  what  they  had  agreed  further  to  do,  in 
cafe  the  court  fhould  not  accept  it.  Nor  is  it 
an  unreafonable  ground  for  a  jury,  in  a  doubt- 
ful cafe  to  change  their  verdift  tipon,  that  the 

opinion 


^   .„OQ 


againjt 


County  of  New^'Lonbon,  Feb.  Term.' 

opinion  of  the  court  is  againil  it ;  nor  can  it  be 
miibehaviour  in  them,    at  the  time  of  finding 
their  verdi6i:,  to  agree  that  they  will  after  it,  if    Apthorp 
fach  fhould  be  the  opinion  of  the  court. 

Nor  does  it  afFeB:  the  validity  of  a  verdi6l,  if 
a  jury,  as  is  fuggefted  was  the  cafe  here,  in  a 
doubtful  cafe  decide  by  a  major  vote  which 
way  it  Oiould  be  found,  ans^  afterwards  confent^ 
and  bring  it  in  accordingly.  Nothing  is  here 
decided  by  chance.  The  minority  might  \x\iu 
mately  be  convinced  ;  for  it  is  a  reafonabie 
ground  for  them  to  dillruft,  and  change  their 
opinion  upon,  and  fuch  as  mull  be  often  gone 
upon,  that  the  majority  differ  from  them.  If 
they  only  acquiefce  it  is  fuiricient.  And  fo 
have  been  the  decifions.  The  cafe  of  La-w-^ 
rence  and  Bo/well,  where  the  jury  voted  for  a 
verdiB:,  and  feven  were  for  finding  it  as  it  was 
found,  and  it  was  holdeii  to  be  good  (M  B.  R. 
Trin.  26.  G.  II.}  is  in  point. 

So  the  motion  in  arreft  was  ruled  infuffici- 
ent. 

Sherman  and  Pitkin,  Judges y  contra, — - — 
We  are  of  opinion,  that  the  motion  in  arreil  is 
fuflicient. — Firft,  Becaufe  Perez  Morton^  who 
commenced  and  profecuted  the  fuit,  had  no  le- 
gal authority  to'  a8:  as  guardian  or  prochein  amy 
to  the  plaintiff.  There  is  no  pretence  that  he 
was  ever  appointed  her  guardian,  nor  has  he 
ever  been  authorized  by  her  or  the  court  to 
profecute  this  a6lion  as  her  prochein  amy  ;  but 
he  has  aQ:ed  therein  merely  as  a  volunteer^ 
without  any  kind  of  appointment  or  authority. 

The  laws  of  this  (late  authorifes  the  courts 
of  probate  to  appoint  guardians  for  infants,  to 
take  care  of  their  perfons  and  property;  who 
are  to  give  bonds  for  the  faithful  difcharge  of 
their  trull,  and  to  render  an  account  when  re- 
quired; but  no  provifion  is  made  for  an  infant 
'  JE  e  e  to 


•418  County  of  New-London,  Feb.  Term. 

iVSS^     to  fue  by  procJuin  a?ny;   when  it  (hall  be  found 
z=:^J==Jz     necelTciry,  the  legiilature  will  doubtlefs  provide 
AptliQrp    for  it. 

iigai.yl  It  was  not  admitted  in  Encrland  by  the  com- 

jiaciius.  j^Q^  jg^^^  l^jj^  ^^^^  introduced  by  the  ftatute  of 
Wejlmin/ler,  1,  Chap,  48,  and  further  regulated 
by  flatute  o{  Wejlminjier  2,  Chap.  15,  and  is  al- 
lowed in  only  fome  fpecial  cafes. — (Cro,  Jac, 

641.) But  thofe  ftatutes  are  of  no  force   in 

this  (late  :  And  in  England  no  perfon  is  allow- 
ed to  profecute  any  fuit  in  behalf  of  any  in- 
fant, as  prochdn  amy^  without  a  fpecial  appoint- 
ment, and  admiffion  by  the  court  entered  on 
the  record. 

The  forin  of  admiffion  in  the  court  of  king's 
bench  is  as  follows :  _  - 

^^By  the  Court, )  It  is  granted  by  this  court, 
to  xjoit :  j  that  A.  B.  gentleman,   do 

*'  profecute  for  C.  D.  who  is  within  age,  as  the 
*'  next  friend  of  the  faid  C.  D.  againft  i^.  F.  of 
*'aplea  of  debt,  <&^.'' 

I'he  form  of  admiiTion  is  nearly  the  fame  in 
the  court  of  common  pleas.  (See  the  forms  of 
entry,   1  Attorney's  Pra^ice,  210. — 2  Attorney's 

Pock,  Cor/ip.  191.) But  it  is  faid,  that  long 

pra8:ice,  and  the  reafon  of  the  cafe,  is  fuffici- 
ent  to  warrant  the  proceedings  in  this  cafe ; — 
on  which  we  would  obferve — that  we  know  of 
no' adjudication  in  this  ftate  in  favour  of  the 
right  of  an  infant  to  fue  by  prochein  amy  ;  and 
it  is  probable  that  the  {t\^  inftances  wherein  it 
has  been  praftifed,  have  been  occafionedby  not 
duly  attending  to  the  authority  under  which  it 
was  introduced  and  pra6lifed  in  England,  and 
that  there  was  no  fuch  authority  for  it  here  ; 
and  fome  cafes  have  paffed  into  judgement 
without  being  objected  to  by  the  defendant,  or 
noticed  by  the  court.  So  there  has  been  in- 
ftances wherein  infants  have  appeared  by  attor- 
ney 


County  of  New-LondoNj  Fee.  Term.  419 

ney  ilvdl  hdive  ^d^ffed  fubfilentio.     But  an  erro-     '"inSd, 
neous  pra6lice,   long  perfifted  in,   or  often  re-     ==^=--:-= 
peated,  will  not  thereby  become  legal ;  and  we     ^^pthorp 
are  of  opinion,   that  the  reafon  is  on  the  other     ^^''^J^ 
fide   of  the    queftion.      It   is_  allowed,   that  it     ^^'^''^^^* 
would  not  be  reafonable  to  admit  an  infant  to 
appear  by  attorney,  becaufe  he  has  not  fuffici- 
ent  difcretion  to  appoint  one ;  but  would  it  not 
be  much  fafer  for  him  to  have  his  caufe  profe- 
cuted  by  an  officer  of  the  court,   who  mufl:  bs 
a  perfon  of  known  probity,    and  is  under  the 
obligation  of. an  oath  to  be  faithful  to  his  truft, 
than  to  truft  it  with'  a  ftranger  not  known  to  the 
infant,   nor  appointed  by  the  court^  but,   as  in 
the  prefent  cafe,  a  foreigner  and  alien,  with  re- 
fpeQ;  to  the  infant,   and  out  of  the  power  and 
jurifdi-Qion  of  this  Court,   and  who,   if  he  gets 
poiTeflion  of  the  eftate  of  the  infant,   by  means 
of  this  fuit,    may  put  her  in  a  worfe  condition 
than  to  have  it  remain  in  the  poffefiion  of  the 
prefent  defendant. 

If  the  courts. of  law  here  adopt -the  Briti 111' 
praftice  of  allowing  infants  to  fue  hy  prochmi 
am)\  they  ought  alfo  to  adopt  their  rules  of  ap- 
pointing and  admitting  the  perfons,  fo  as  to 
give  like  (ecurity  to  the  infant;  and  if  an  aft 
of  the  court  is  neceifary  for  that  purpofe,  it 
muft  appear  by  record.  Ld.  Raym.  232,  Pcchey 
againft  Harri/vn,—'*  The  plaintiff'  (being  an  in- 
*'  fant)  brought  an  atlion  by  guardian,  and  af-- 
**  ter  v^rdi6t  for  him,  it  was  moved  in  arreft  of 
•*  judgement,  that  there  was  no  warrant  for  him 
''  to  appear  by  guardian  entered  upon  record; 
"  and  it  was  refolved  by  all  the  courr,  that  the 
**  admittance  of  a  guardian  ought  to  be  upoa 
"  record;  becavje  it  is  the  act  of  the  court,  for 
*'  the  court  takes  care  of  infants,  that  none  ihali 
"  fue  for  them  but  thofe  that  are  refponfible  ^ 
"  for  if  the  infant  be  prejudiced,  he  may  have 
E  e  e  2  his 


420  County  of  Ne\v-Lonbon,  Feb.  Term. 

"^^3^     "  his  aQion  againfl  him  ;  but  judgement  can- 
t:^-:--^.     *«  j^Qt  ]-je  arreted  for  this  caufe,  any  more  than 
Apthorp    **  if  no  warrant  of  attorney  be  filed:  But  upon 
agahji     «  error  brought,  and  diminution  alledged,  and 
Backus.     <c  certified  in  the  king's  bench,   it  will  be  ill, 
**  for  which  the  judgement  may  be  reverfed ; 
^  "  but  judgement  can  never  be  arrefted,  but  for 
^*  that  which  appears  upon  the  record  itfelf/'&c. 
But  why  ihould  the  court  render  an  errone- 
ous judgement,  when  they  have  notice  of  the 
error  by  a  motion  in  arreA  ? 

This  cafe  (hews  that  a  judgement  in  favour 
of  an  infant  may  be  reverfed,  for  want  of  a  re- 
cord of  the  admillion  of  his  guardian,  though 
the  court  v/ould  not  arreft  the  judgement  for 
that  caufe.  But  this  cafe  differs  from  that;  for 
that  was  profccuted  by  a  guardian  who  had  a 
legal  authority  to  profecute  the  action,  and  the 
only  defe8t  v/as  the  want  of  his  having  produced 
liis  authority  to  the  court,  for  their  admiffioa 
and  entry  on  record;  and  therefore  it  compares 
with  the  regiftering  a  warrant  of  attorney,  to 
appear  for  a  perfon  of  fall  age :  But  in  this 
cafe  the  profecutor  could  have  no  kind  of  au- 
thority, without  an  a8:ual  appointment  by  the 
court ;  and  therefore,  there  has  been  no  legal 
appearance  or  profecution  on  the  part  of  the 
plaintiff.— Therefore,  for  this  reafon,  we  are  of 
opinion,  that 'the  judgement  ought  to  be  ar- 
refted. 

As  to  the  fecond  ^nd  fifth  exceptions — We 
agree  in  opinion  with  the  Chief  Jiijlice  and 
Judge  Elljworthy  for  the  reafons  given  by  them. 
As  to  the  third  and  fourth  exceptions — We 
are  of  opinion,  that  they  are  fufficient;  for  if 
a  judgement  ihould  be  rendered,  purfuant  to 
the  plaintiff's  demand,  and  the  verdift  of  the 
jury,  the  plaintiff  will  recover  more  land  than 
by  her  ov/.n  ihewing  Ihe  has  a  right  to  recover; 

and 


County  of  New-Lonbon,  Feb.  Term,  421 

and  although   the  jury  might  have  cured  the     ^Tgg^ 

clefeB:  in  the  declaration,   by  finding  a  verdi6t     ===== 
only  for  the  recovery  of  the  land  of  which  the     Apthorp 
plaintiff  had  been  diffeifed  ;    but  as  they  have     ^^^^# 
not  done  it,  we  think  that  it  cannot  be  regular-     2^^'^'- 
ly  helped  by  the  judgement. 

But  if,  notwithllanding  thefe  reafons  to  the 
contrary,  judgement  fhall  be  rendered  for  the 
infant,  we  think  that  the  execution  ought  to  be 
ftayed,  until  ilie  arrive  at  full  age,  or  until  a' 
guardian  legally  appointed  appears  to  take  pof- 
feffion  of  the  eiiate  for  her  benefit. 


Backus  and  Others  againjl  Deniscn. 

THIS  was  an  aSion  of  debt  upon  juclge^^ 
ment,  by  writ  of  foreign  attachments  with 
an  averment  of  non  eft  inventus  ;  and  that  the 
defendant  had  abfconded. 

The  plea  was — That  in  the  firft  a6lion,  the 
plaintiffs,  by  a  foreign  attachment,  attached  a 
debt  of  the  defendant,  in  the  hands  of  one  HilU 
houfe  ;  and  that  Hillhoiife^  by  agreement  with 
ihe  plaintiffs,  placed  property  in  their  hands^ 
more  than  to  the  value  of  their  debt ;  whick 
they  did  not  apply  in  payment,  but  converted 
it  to  their  own  ufe. 

Upon  demurrer,  judgement  v/as  rendered  for 
the  plaintiffs. 

By  the  Court.— fj'z/,^^^ Sherman  ahfent)' 
If  the  plaintiffs,  having  attached  the  defendant's 
property  m  the  hands  of  Hillhoufe,  had  pro- 
ceeded after  judgement,  and  levied  their  exe- 
cution upon  it,  it  would  have  applied  in  pay- 
ment to  them,  and  m  exoneration  of  Htllhoujc 

from 


422  County  of  New-Loni>on,  Fe.b.  Term. 

i~788!     f^om  the  defendant ; — but  it  doth  not  appear 

= that  the  plaintiffs  took  any  thing  from  Hillhoufe 

Backus, &c  by  their  execution,  or  even  upon  an  agreement 
^<?«f»/*  that  it fhould apply  thereon;  but  only  that H^//- 
♦  *"i  0"'  houfe^  *'  by  agreement  with  the  plaintiffs,  placed 
"  property  in  their  hands  (for  what  purpofe  is 
"  uncertain)  which.they  have  converted  to  their 
**  own  ufe.*' — This  placing  of  property  in  the 
plaintiffs  hands,  and  their  converfion  of  it, 
might  fubj eel  them  to  HillJioufe  in  trover  or 
account,  but  could  have  no  effe6l  upon  their 
execution,  or  on  Hillhoufe' s  debt  to  the  defen- 
dant; and  is  no  reafon  why  judgement  fhould 
not  be  rendered  againit  the  defendant  in  this 
action. 


evidence. 


Witter  againjl  Brewster. 

Ik1a"a"'''      A  CTION  of  trefpafs,   upon  the  flatute  for 

verdia,  that  xjL  Cutting  timber. The  general  iffue  was 

nXkeithc  pleaded— and  a  verdia  for  the  defendant, 
law  or  the         The  plaintiff  moved  in  arreft  of  judgement, 
affigning  two  caufes : — 

1.  That  feveral  material  papers  exhibited  on 
the  trial,  were  fuppreffed  by  the  defendant,  and 
not  committed  to  the  jury  when  the  caufe  was 
under  confideration. 

2.  That  the  jury  had  miftaken  the  law  and 
the  evidence  in  the  cafe.  » 

The  motion  in  arrefl  was  ruled  infufficient. 

By  the  Court. — (^yW^f  Sherman  ahfent,) 
As  to  the  firft  exception — It  does  not  appear, 
upon  enquiry,  that  the  exhibits  which  failed  of 
being  committed  to  the  jury,  were  fuppreffed 
by  the  defendant,  or  that  they  were  material  in 

the 


Bxewusro 


County  of  New»LondoN;j  Feb.  TirmJ  423 

the  caufe,  except  for  the  purpofe  of  affefling  ^^337 
damages,  if  the  defendant  had  been  found  ===== 
guilty.  Witter 

As  to  the  other  exception — that  the  jury  have 
found  contrary  to  law  and  evidence — li  doth 
not  vitiate  a  verdiO:,  that  the  jury  have  mif- 
taken  the  law  or  the  evidence;  for  by  the  prac- 
tice of  this  (late,  they  are  judges  of  both  :  But 
if  they  ihould  find  contrary  to  matter  of  record, 
or  of  ettoppelj  or  what  is  admitted  by  the  plead- 
ings, the  verdiO:  v/ould  be  exceptionable  ;  nei-. 
ther  of  which  is  averred  to  be  the  cafe  here; 
nor  is  it  fappofabie,  from  the  nature  of  the  ac-- 
tion  and  the  iiTue. 


Fanning  and  Others  againjl  Co  it. 

COIT  preferred  his  petition  to  the  court  of  debc^igaUift 
common  pleas,  againft  Fanning  and  Other s^  the  eftate  of 
adminiftrators  on  the  eftate  of  Hurlbiit,  deceaf-  peffbS*^*^ifot 
ed,  alledging — -That  himfelf,  the  deceafed,  and  being  cKhi- 
one  other,   had  been  partners  in  trade  :    That  admlnTftra- 
fince  the  deatii  of  faid  Hurlbut  a  demand  had  tor  within 
been  exhibited  againft  faid  partnerftiip,  v/hich  mtced'bythe 
was  the  joint  duty  of  faid  partners  to  have  dif-  coutof  pro- 
charged,  and  the  petitioner  was  obliged  to  pay  c fofe d"  a^nd" 
the  whole  thereof : — Therefore,   praying  for  a  nocoxmczn 
decree  that  faid  adminiftrators  fhould  pay  out  a^^rinftit. 
of  i\\<^  eftate  of  faid  deceafed,   fuch  proportion 
of  faid  demand  as  belonged  to  their  intejlatt  to 
have  paid.  * 

There  was  a  plea  in  abatement— That  faid 
Coit  did  not  exhibit  his  claim  againft  the  eftate 
of  faid  Hurlbut,  within  the  time  limited  by  the 
Judge  of  Probate;    But  it  was  ruled  infuffici- 

ent 


424  County  of  New-London,  Feb.  Term. 

— iTsi^     ^^^  ^y  ^^^^  court  of  common  pleas,  and  a>de-. 
==4:=i     cree  paffed. 
Fanning,        On  writ  of  error,  the  decree  was  here  re^ 

&c*        verfed. '■ — For, 

^A^'f^         By  THE  WHOLE  CouRT. Tlic  pctitionef 

neglefting  to  exhibit  his  claim  to  the  adminif- 
trators,  within  the  time  limited  by  the  court  of 
probate,  was,  by  a  pofitive  ftatute,  foreclofed 
from  any  recovery  afterv/ards  ;  which  no  court 
of  law  or  equity  hath  right  to  difpenfe  with,  or 
relieve  againft. 


'  K 1 L  B  o  u  RN  agjziiifi  W A  T  E  Ro u  s  diid  Others, 

IN  an  aBion  of  trefpafs  againft  a  number  of 
defendants,  who  feverally  pleaded  not  guilty, 
ihe  jury  found  a  verdi6t  for  the  plaintiff,  omit- 
ing  to  mention  two  of  the  defendants. — And  on 
motion^  the  Court  fet  the  verdi6i  afide,  as  not 
comporting  with  the  ifTue. 


Deming  againjl  Marsh. 

DEMING  brought  his  a6lion  originally  16 
the  court  of  common  pleas,  upon  a  pro- 
miflbry  note,  dated  Oftober  the  8th,  1777, 
payable  in  lawful  money,  in  one  year  from  the 
date.-^^ The  pleadings,  which  ended  in  a  de- 
murrer, ftated — That  upon  the  6th  day  of  Ju- 
ly, 1778,  the  defendant  paid,  in  continental 
currency,  the  fum  of  40/.  165.  which  was  en- 
dorfed  in  thefe  words ;  **  Received  on  this  note 


County  of  New-London,  Feb.  Term/  425 

*'  40/.    165."— And  that  the  defendant   after-     "^i^gl! 
wards  tendered  mfpeciethe   remaining  con-     =====3 
tents. — So  that  the  only  queftion  was— whe-    Deming 
ther  the  payment  in  continental  bills  ftiould  be      f^""^^^ 
applied  nominally,  or  be  reduced  to  the  fpecie 
Value. 

The  court  of  common  pleas  confidered  it  as 
applying  nominally,  and  fo  gave  judgement  for 
the  defendant ; — and  upon  writ  of  error,  the 

judgement  was  here  affirmed. For, 

By    the    Court. The    endorfement  is 

prima  facie  evidence,  that  fo  much  was  receiv"- 
ed  in  the  fame  currency  expreffed  in  the  note. 
.The  defendant,  in  his  rejoinder,  fays,   that  the 
.payment  was  in  continental  bills,  then  current- 
ly paffing  within  this  ftate  as  money,  and  were 
ib  by  the  plaintiff  received   and  endorfed   on 
faid  note. — The  plaintiff,   in  anfwer,   fays,   he 
ought  not  to  be  barred  without  thatyihdil  faid  fum 
in  continental  bills  was  received  and  endorfed 
as  and  for  that  fum  in  hard  money ;  which  is 
not  a  dired  anfwer  to  the  allegation  of  the  de- 
fendant.— The  note  was  given  after  the  paper 
currency  began  to  depreciate,   and  the  defen- 
dant does  not  fay  that  faid  bills  were  received 
as  fo  much  hard  money,   but  as  fo  much  cur- 
rent money.-— Therefore,  it  does  not  appear  by 
.the  pleadings,  that  there  was  any  fpecial  agree- 
,inent  between  the  parties,  at  what  rate  the  fum 
endorfed  fhould  be  applied  in   payment ;— it 
-muft,  therefore,  be  determined  upon  the  evi- 
dence ariiing  from  the  words  of  the  endorfe- 
ment, and  fo  be  confidered  as  a  payment  of  that 
nominal  fum  of  the  duty  contained  in  the  note. 

Note.— Judge  Eh-swoktm  gave  no  opinim 
.  in  thi^  cafe. 


F  f  f  Pettis 


j^iS  County  of  N£W-London,  March  Term, 

^,         .  p^^^jg  ^^j  Others  againjl  Jac^  Warren. 

agdinj}      'HT^HIS  was  a  writ  of  error,   upon  a  judge- 
Warren.      J^     ment  of  the  mayor's  court,  in  the  city  of 
Norwich. 

The  cafe  was — That  the  defendant  in  error 
brought  his  a8;ion  of  trefpafs  before  the  may- 
or's court,  for  an  affault  and  battery. The 

defendants  in  the  adion  pleaded  in  abatement — 
That  the  plaintiff  was  a  runaway  Negro,  a  flave 
for  life,    travelling  without  a  pafs,    and  being 
found  by  the  defendants  in  the  city  of  Nor- 
wich, was  taken  up  to  be  examined  before  pro- 
per authority  :  That  no  duty  had  been  paid  up- 
*                on  the  plaintiff's  writ ;    and  that  neither  of  the 
parties  lived  within  the  jurifdidion  of  faid  city. 
The  plaintiff  replied— That  he  lived  within 
the  jurifdi6lion  of  faid  city,   and  had  paid  the 
duty  on  his  writ,  and  traverfed  his  being  a  Have. 
The  defendants  affirmed  over  the  whole  of  their 
plea,  and  ilfue  was  joined  thereon. The  ju- 
ry found  a  verdi8;  for  the  plaintiff,  and  9/.  da- 
mages, leaving  that  part  of  the  ilfue,  whether 
the  plaintiff  was  a  runaway  Negro,  unanfwered; 
on  which  it  was  moved  in  arreft  of  judgement, 
on  this  ground — that  the  verdi8:  did  not  com- 
port with  the  iffue  : — But  the  motion  was  over- 
ruled 5  which  was  one  of  the  errors  complain- 
ed of. 

Anothermatter  complained  of  in  error,  was— * 
That  upon  a  challenge  to  one  of  the  jurors ; 
for  that  he  had  declared  an  opinion,  "  that  no 
**  Negro,  by  the  laws  of  this  ftate,  could  be 
**  holden  a  flave  ;"  an  enquiry  into  the  fads 
was  denied,  and  he  admitted  to  {lU 

On  both  points  the  judgement  of  the  city 
court  was  affirmed. 

By 


County  of  New-London,  March  Term*  4,2J 


By  THE  WHOLE  Court.— Though  by  fta-        ^„gg^ 
tute,  "  whatfoever  Negro  is  found  wanderiiig     ===s 
*^  out  of  the  town  or  place  to  which  he  belongs^  Pettis,  &c» 
'^  without  a  tickeiy  or  pafs,  in  writing,  under  the    ^^^"-^ 
"  hand  of  his  mafter  or  owner,  or  of  an  Affift-     ^^^^^^* 
*'  ant  or  Juftice  of  the  Peace,  fliall  be  deemed 
**  a  runaway  ;  and  any  perfon  finding  or  meet- 
"  ing  him,  may  feize  and  fecure  him,  to  be  ex- 
**  amined  before  the  next  authority.  Sec,*'  Yet 
the  jury  having  found  that  the  plaintiff,  at  the 
date  of  his  writ  (which  was  the  next  day  after 
the  fatls  complained  of)   lived  and  dwelt  in  the 
city  of  Norwich,    it  appears  that  he  was  not 
wandering  out  of  the  town  or  place  to  which  he 
belonged,  fo  as  by  the  flatute  to  juilify  the  fei- 
zure  of  him  by  a  private  perfon,  not  his  maf- 
ter. 

If  the  plaintiff  was  a  wandering  Negro,  fub-  . 
je8:  to  be  taken  up  as  a  runaway,  this,  though 
it  might  be  matter  of  juftification,  and  plead- 
able in  bar,  is  not  matter  of  abatement,  nor 
the  queftion  concerning  it  a  material  part  of 
the  iffue. 

As  to  the  other  point — An  opinion  formed 
and  declared  upon  a  general  principle  of  law, 
does  not  difqualify  a  juror  to  fit  in  a  caufe  in 
which  that  principle  applies.  Juries  are  judges 
of  law  as  well  as  fa8,  as  relative  to  the  iffues 
put  to  them,  and  are  fuppofed  to  have  opini- 
ons of  what  the  law  is,  though  a  willingnefs  to 
change  them,  if  reafon  appears  in  the  courfe  of 
the  trial.  They  may  all  be  challenged  on  one 
fide  or  the  other,  if  having  an  opinion  of  the 
law  in  the  cafe  is  ground  of  challenge. -—It  is 
enough  in  point  of  indifferency,  that  jurors 
have  no  interefl  of  their  own  aiFefted,  and  no 
perfonal  bias,  or  pre-pofFeffion,  in  favour  or 
againil  either  party ;  and  not  requifite  that  they 
fliould  be  ignorant  of  the  caufe,  or  unopinionat- 
Fff2  ed. 


^28  County  of  New-London,  March  T£R^^ 

'^^itSs'.     ^d>^s  to  the  rules  and  principles  by  which  it  is  to 

' ■ — :     be  decided. — It  has   been  adjudged  (23,  Car": 

Pettis,  &c.  K.  BJ  not  to  be  a  fufficient  caufe  of  challenge, 
^air.fi  ^^^  a  juror  had  declared  his  opinion  concernl 
iWarren.  -^^^  ^^^  ^-^j^  ^^  ^j^^  land  queftion  ;  fo  alfo,  that 
the  jury  have  found  others  guilty  on  the  fame 
indidment;  or  that  a  juror  h-as  declar^ed  4iis 
^opinion  that  the  'party  is  guilty,  and  will  be 
hanged,  if  it  appears  he  made  fuch  declaration 
from  his  knowledge  of  the  caufe,  and  not  out 
of  ill  will  to  the  party.  2  Hawk,  P,  C.  418. — It 
appears,  therefore,  to  us,  that  the  judgement  of 
the  city  court  is  not  erroneous  in  either  of  the 
matters  complained  of. 


Phelps  cfgainji  Swan  and  Others. 

THIS  was  an  a6Hon  of  debt  upon  an  admi- 
niftration  bond,  dated  the  yth  of  July^ 
1778,  conditioned — That  the  adminiftrators 
named,  fliould  ^*  the  goods  and  eftate  of  the 
**  deceafed  well  and  truly  adminifter,  accord- 
*'  ing  to  law :  And  further,  make  a  true  account 
**  of  their  adminillration,  at  or  before  the  7th 
"  day  of  July,  1779;  and  the  refidue  of  faid 
*'  goods  and  eftate,  which  fhould  be  found  re- 
**  maining  upon  faid  accounts  (the  fame  being 
*'  firft  examined  and  allowed  by  the  court  of 
•*  probate)  deliver  and  pay  to  fuch  perfon  or 
"  perfons  as  faid  court,  purfuant  to  law,  fhould 
**  limit  and  appoint." 

The  breach  afTigned  was^-That  judgements 
•recovered  by  certain  creditors,  viz.  Pimderfon, 
•Moity  and  Ledyardy  againft  the  adminiftrators, 
to  the  amount  of  50/.  they  had  failed  to  pay  ; 

and 


Swaa,  kL 


COUMTY   OF   N£W-L0NI50N,    MaRCH  TeRM^  42§ 

and  had  embezzled  the  eftate  of  the  deceafed,     ^"Tg^ 
and  become  bankrupts.  =.==;==« 

The  defendants  pleaded  in  bar — That  the  Phelps 
adminiftrators,  on  the  31ft  day  of  July,  1778,  ^^K^^^fi  ^ 
having  notified  the  creditors  to  bring  in  their 
claims,  and  having  waited  a  reafonable  time  for 
them  to  do  it,  they  proceeded,  by  order  of  the 
Judge  of  Probate,  to  fettle  faid  eftate,  and  al-. 
lowed  and  paid  off  all  claims  exhibited ;  and 
then  proceeded  to  divide  the  remainder  of  faid 
eftate,  being  perfonal,  one  half  to  the  widow  of 
the  deceafed  (the  afting  adminiftratrix)  and  the 
reft  to  his  heirs  ;  That  the  widow's  fhare  was 
loft  in  trade  ;  and  that  the  heirs  returned  theirs, 
which  was  applied  in  payment  of  debts,  &c.-^ 
and  that  the  claims  of  faid  Punderfon  and  others, 
were  not  exhibited  till  after  faid  diftribution. 
The  plea  was  adjudged  infafficient. 

By  the  whole  Court.— = — It  does  not  ap- 
pear that  the  diftribution  or  divifion  of  the  es- 
tate was  by  order  of  the  J  udge  of  Probate,  or 
of  any  validity  :  The  order  averred  in  the  plea 
was  not  an  order  of  diftribution,  but  only  a  ge- 
neral dire6lion  from  the  Judge,  to  proceed  in 
the  fettlement  of  the  eftate,  and  was  before  pay- 
ment of  the  debts  exhibited,  and  without  an 
account  allowed  or  exhibited  upon  which  an 
order  for  the  diftribution  of  the  remaining  ef- 
tate could  be  made. — The  diftribution,  there- 
fore, or  divifion  of  the  eftate,  between  the  ad- 
miniftratrix and  the  heirs,  being  an  unautho- 
rifed  one,  could  have  no  effect  to  exonerate 
her  of  any  fubfequent  claims  of  creditors. 

Nor  would  the  diftribution  have  exonerated 
her  of  them,  had  it  been  a  legal  one ;  though 
now  by  ftatute,  creditors  to  folvent  eftates,  as 
well  as  infolvent  eftates,  are  limitable,  as  to  the 
time  of  exhibiting  their  claims,  they  were  not 
fo  then.     Certain  it  is,  that  diftribution  was  not 

a 


430  County  OF  New-London,  March  Term. 

^^TSST     ^  limitation  of  claims ;  for  the  ftatute  provid- 

==4===^     ed,    that  all  who  fhould  fliare  in  the  diftribir- 

Phelps      tion  fhould  give  bonds,  with  fecurity,  to  refund 

againft     ^q  the  adminiftrator,   in  cafe  debts  afterwardis 

Swan,    c.  appeared.     An  adminiftrator  might  alfo,  for  his 

greater  fecurity,  in  cafe  of  doubt  as  to  the  fuf- 

£ciency  of  the  eftate,  reprefent  it  infolvent,  and 

in  that  way  bring  in  or  bar  the  claims;  but 

could  not  bar  them  by  a  diftribution. 

Nor  would  the  want  of  affets  in  the  hands  of 
the  adminiftratrix,  if  there  was  in  faQ;  a  defici- 
ency, difcharge  her;  for,  under  our  ftatute,  fo 
long  as  there  has  been  no  reprefentation  of  in- 
folvency,  want  of  aflets  is  not  pleadable ;  but 
there  appears  no  want  of  affets  in  this  cafe. — 
Admitting  the  diftribution  to  have  been  legal, 
Jlill  the  moiety  the  adminiftratrix  retained  in 
her  own  hands  remains  affets,  as  much  as  be- 
fore, and  whether  ftie  has  wafted  it  or  not ;  fo 
alfo  would  havx  remained  what  ftie  diftributed 
to  the  heirs,  or  their  counter  bonds  to  refund  it, 
if  needed;  but  that  it  appears  has  been  refund- 
ed. 

The  adminiftrators  have  not,  therefore,  well 
.and  truly  adminiftered  the  eftate  of  the  de- 
ceafed,  according  to  the  requirements  of  law, 
^nd-ihe  condition  of  the  defendants  bond. 


Gallup  againjl  Dennison, 

THIS  was  an  aftion  of  debt,  upon  a  bail 
bond. The  declaration  ^vas^ — ■.**  That 

•'  on  the  4th  day  of  OBober,  1785,  he,  the 
**  plaintiff,  had  in  his  hards  a  lawful  writ  of  at- 
**  tachment,  in  the  name  and  {^.wom  oi  Charles 

«*  Eldridge, 


Ck)unty  of  New-London,  March  Term.  431 

"  Eldridgf,  againft  one  William  Elliot^  of  Ston-  '^"Tg'g^ 
**  ington,  for  the  the  fum  of  forty-live  pounds,  • — - — ~-y 
**  lawful  money,  made  returnable  in  the  county  Gallup 
*^  court,  to  be  held  at  Norwich,  on  the  fourth  ^-g^i^A 
'*  Tuefday  of  November,  1785  :  Which  writ  ^enmlon. 
"  the  plaintiff  was  lawfully  authorifed  and  em- 
"  powered  to  ferve  and  return,  according  ta- 
^^  lav/;  and  on  the  fourth  day  of  Oftoberi  1785, 
"  aforefaid,  the  plaintiff  lawfully  arrefted  the 
**  body  of  faid  William  Ellioty  by  virtue  of  faid 
"  writ ;  and  Jofeph  Dennifon  appeared  and  be- 
**  come  bail  for  the  faid  William's  appearance 
**  at  faid  court,  on  the  fourth  Tuefday  of  No- 
**  vember  then  next;  and  the  faid  Jofeph  and 
^*  faid  William  then  and  there  gave  unto  the 
*'  plaintiff  a  certain  obligatory  writing  or  bond,  ^  . 
**  under  their  hands  and  feals,  and  by  them  welt 
'•  executed,  and  delivered  the  fame  to  the  plain- 
**  tiff  (which  bond  is  recited  at  large  in  the  decla-- 
<*  ration,) — And  that  having  duly  ferved  faid 
«*  writ  on  the  faid  Elliot's  body,  and  read  the 
"  fame  in  his  hearing,  and  taken  bond  as  afore- 
•*  faid,  he  duly  returned  the  fame  into  the  files 
*«  of  the  faid  county  court,  with  his  endorfement 
^*  thereon^  that  he,  the  plaintiff,  had  taken  bail 
**  according  to  law,  for  the  faid  Elliot's  appear-, 
««  ance  at  faid  court.  At  which  faid  court  faid 
**  Eldridge  appeared,  and  the  caufe  was  by  faid 
"  court  adjourned,  till  the  firft  Tuefday  of  Fe» 
"  bruary,  A.  D.  17B6  ;  at  which  court  the  faid 
•'  Eldridge  appeared  in  faid  caufe;  but  the  faid 
*'  Elliot  failed  to  appear,  and  anfwer  in  faid 
•*  caufe,  according  to  the  conditions  of  faid 
*'  bond  J  and  faid  court  rendered  judgement  in 
**  faid  caufe,  in  favour  of  faid  Eldridge,  on  de-i 
"  fault,  for  the  fum  of  21/.  75.  4,d.  debt,  and  for 
'*  4/.  35.  6d.  coft;  on  which  judgement  the  faid 
*'  Eldridge^  on  the  21ft  day  of  February,  A.  D. 
!^  17861  P^^y^^  ^^^  ^  v^^(  &f  e^cution^  againlV 

faid 


Dcnnifon. 


43a  County  of  New-London,  March  Term^ 

i'tBST  "  ^^^^  Ellioty  for  faid  fums,  and  one  {hilling  for 
==4==4  "  faid  writ  of  execution,  directed  to  the  flierifF 
GuUup  "  of  faid  county,  his  deputy,  or  either  confta- 
againji  f<  bles  of  Stonington — them  commanding  to 
*'  levy  and  colle8:  the  fums  contained  in  faid 
V  execution,  with  faid  officer's  fees^  and  made 
"returnable  in  fixty  days  from  the  faid  21ft 
"  day  of  February,  A.  D.  1786;  all  in  due 
"  form  of  law.  Which  faid  execution  faid  EU 
"  dridge  put  into  the  hands  of  Luther  Hull,  who 
**  then,  and  for  more  than  fixty  days  next  after- 
**  wards,  was  a  legal  conftable  of  Stonington  ; 
**  which  faid  Hull  made  diligent  fearch  after  the 
**  perfon  or  eftate  of  faid  Ellioty  throughout  his 
*'  precinfts,  but  could  find  neither  ;  and  on  the 
*'  15th  day  of  April,  A.  D.  1786,  the  faid  Hull 
*'  returned  faid  execution  into  the  files  of  faid 
**  county  court,  with  a  proper  non  ejl  inventus 
**  endorfed  thereon,  with  twelve  fhillings  for 
**  faid  officer's  fees,  all  in  due  form  of  law  \  all 
**  of  which,  by  the  files  and  records  of  faid 
**  court,  may  appear.  And  thereby  the  plain- 
**  tiff  hath  become  liable,  and  obliged  to  pay 
*'  the  faid  Eldridge  the  full  fum  contained  in 

•'  faid  execution,    and  faid  officers  fees." 

And  the  declaration  concluded  with  averments; 
that  the  judgement  remained  in  full  force,  the 
execution  unfatisfied,  and  the  bond  unpaid*  ' 
On  demurrer  to  this  declaration,  three  ex-, 
ceptions  were  taken  :  . 

1.  That  it  does  not  appear  that  the  fuppofed 
officer  had  authority  to  make  an  arreft,  and 
take  bail.  ^ 

2.  Nor  that  there  was  a  failure  to  perfornt 
the  condition. 

3.  Nor  that  there  has  been  a  non  ejl  inventus 
againft  the  principal.  ** 

By  the  Court. The  averments  relative 

to  ihefe  points  are  not  fo  explicit  as  they  might 

have 


Dennifon. 


County  of  New-London,  March  Term.^  43J 

have  been,  but  are,  however,   certain  enough     "^"^17 
to  common  intendment,   efpeciaily  as  they  are     ■ — -— =^- 
references  to  matters  more  fully  appearing  of     Gallup 
record,  of  which  a  profert  is  laid.  -r^^ff-r^ 

As  to  the  firft  exception— the  averment  is — 
That  the  "  plaintiff  was  lawfully  authorifed  and 
"  empowered  to  ferve  and  return,  &c.'*  Which 
is  (ufficient,  without  fetting  forth  particularly 
the  circumftances  im.plied  in  his  being  fo  au- 
thorifed and  empowered,  as  that  he  was  fpeci- 
ally  empowered  by  a  Juftice  of  the  Peace,  who 
was  appointed  by  the  General  Aifembly,  and 
fworn  by,  &c.  For  though  a  declaration  is  to 
ftate  facts,  that  the  court  may  fee  that  there  is 
a  title,  yet,  if  a  fa8:  laid  be  of  a  complex  nature, 
and  technically  exprelTed,  it  is  not  ordinarily 
neceffary  to  fet  forth  the  circumftances,  or  com- 
ponent parts,  which  conftitute  the  fa6t;  as  this 
would  make  the  record  too  prolix,  and  there 
may  be  certainty  enough  without  it. 

As  to  the  fecond  exception— the  averment 
is — That  *'  Eldridge  (the  plaintiff  'in  the  origi- 
**  nal*a6tion)  appeared  before  the  court,  and 
"  the  caafe  was  adjourned  10  the  firft  Tuefday 
"  of  February,  A.  D.  1786;  at  which  adjournl 
"  ed  court  the  faid  Eldridge ^appe^red  in  faid 
"  caufe;  but  the  faid  Elliot  (the  principal) Jailed 
"  to  appear y  and  anfwer  in  faid  caufe^  according 
"  to  the  condition  of  faid  bond  ;  and  (aid  adjourn- 
*'  ed  court  rendered  judgement  in  favour  of  faid 
*^  EldridgCy  on  default.'" — From  the  words,  "  but 
"  the  faid  EWxoi  failed  to  appear,  and  anftoer  in 
^^  faid  caufe,''  it  would  not,  indeed,  be  certain, 
but  he  appeared  at  November  court,  to  which 
he  was  bound;  but  coupled  with  the  follovv'ing 
words — *' according  to  the  condition  0/ faid  bond,'* 
they  amount  to  a  negation  of  an  appearance  at 
November  court,  as  well  as  at  the  adjourn-, 
ment ;  for  had  there  been  an  appearance  there 
G  g  g  ,  the 


434  County  of  New-London^   March  Term. 

~^Tog^     the  condition  would  have  been  performed,  and 
r==4==^     there  could  not  afterwards  be  a  failure  upon  it. 
GaUup  There  having  been  an   adjournment  of  the 

again)}  caufe  from  November  court,  doth  not  evince, 
Dennifon.  ^^  hdiih  been  contended,  that  there  was  an  ap- 
pearance there  by  the  principal;  which,  in  or- 
der to  difcharge  the  bail,  mull  have  been  by  a 
furrender  of  the  principal  in  court,  appearing 
of  record,  or  by  his  having  plead  to  the  aftiou. 
The  court,  without  fuch  an  appearance,  might 
adjourn  the  caufe  at  the  inotion  of  the  bail,  to 
give  time  to  bring  in  the  principal ;  or,  at  the 
motion  of  the  principal  himfelf,  to  give  time 
for  fpecial  bail  to  be  entered,  that  he  might 
plead. — —There  is  nothing,  therefore,  to  con- 
tradiQ  t^e  averment  of  a  failure  to  perform  the 
conditioii  of  the  bond,  or  to  appear  and  anfwer 
thereto. 

As  to  the  third  exception: — the  averments 
are — That  the  execution  was  dated  on  the  2j-ft 
of  February,  1 7  86s  and  returnable  in  fixty  days  ; 
and  that  the  ofhcer  "  made  diligent  feareh  af* 
**  ter  the  perfon  oreftate  of  faidi^///o^,  through- 
**  out  his  precinfts,  but  could  find  neither;  an^d 
*'  on  the  15th  day  of  April,  A.  D.  1786,  re- 
*'  turned  faid  execution  into  the  files  of  faid 
*'  county  court,    with  a  proper  non  eji  inven-' 

"  tus  endorfed  thereon^  in  due  form  of  law,'" ^ 

JltYt  is  an  averment  of  a  return  of  non  ejl  in- 
ventus^ v/ithin  the  life  of  the  execution,  which 
is  a  return  of  a  certain  appropriate  meaniivg, 
and  the  one  by  name  required  in.the  ftatute  ;— - 
and  alfo,  an  averment  of  the  officer's  having, 
previous  >to  the  return,  dqne  fpecifically  the 
faQs  which  a  non  eJl  inventus  amounts  to; — 
v/hich,  with  a  reference  to  the  record,  is  quite 
fufficient  upon-this  point. 

Judge  Dyer,  diff'enting.^ As  the  founda- 
tion of  my  reafons  for  dilfenting  from  my  bre-* 

thren, 


County  of-  New-Lonbon,  March  Term.  435 

tbren,  in  this  cafe,   I  would  take  notice  of  tv/o     ^Tff^ 
law  principles  : —  =r™7:=3 

i»  That  every  declaration  is  to  be  taken  mod     GaUup 
ilrongly  againft  him  who  declares ;  and  nothing  jfj'^'-'f  • 
is  to  be  taken  in  favour  of  it,  by  implication, 
except  what  is  neceffarily  implied. 

2.  That  where  the  conftru8.ion  is  doubtful^ 
it  Ihall  be  in  favour  of  the  defendant. 

It  is  admitted,  that  the  averments  in  this  de- 
claration are  not  fo  explicit  as  they  might  have 
been. — It  is  furthe«r  admitted,  in  this  cafe,  that 
the  perfon  who  ferved  the  writ  and  took  the 
bail  bond,-  was  not  a  common  legal  ofBcer  au-« 
thorifed  to  ferve  writs,  as  fheriff,  deputy,  or 
conftable ;  but  if  he  had  any  authority  what- 
ever, it  was  by  a  fpecial  power  and  appoint- 
ment given  him  by  the  authority  who  figned 
the  writ,  founded  on  a  particular  ftatute  for 
that  purpofe.  If  the  w^it  had  been  ferved  by 
a  common  legal  officer,  and  an  a8:ion  brought 
by  him  on  the  bail  bond,; there  is  no  doubt  but 
hemull  have  fet  forth  his  office  in  his  declara- 
tion, and  that  he  received  and  ferved  the  writ 
as  fuch;  which  would  be  avering  a  matter  of 
fad,  that  might  be  traverfed,;  and  put  in  ilTue  ; 
and  it  would  not  do  for  him  to  aver  generally^, 
that  he  was  a  perfon  legally  authorifed.- — IF  a 
perfon  who  had  been  arrefted,  and  imprifoned, 
fliould  bring  his  action  for  falfe  imprifonment^ 
would  it  do  for  the  defendant  to  plead,  that  he 
was  legally  authorifed  to  arreft  and  imprifoR 
him  ?  Clearly,  not ;— and  it  is  equally  clear—' 
that  where  any  claim  or  demand  is  made^  by 
force  of  a  fpecial  authority,  fuch  authority  mud 
be  fpecially  fet  forth,  that  the  court  may  judge 
of  the  legality  by  the  fafts  ; — but  from  a  fimpie 
averment,  no  judgement  can  be  formed^  for 
^vant  of  faftsto  ground  it  upon, 

C  gg  ^  As 


435  County  of  New-London,  March  Term. 

"^Tss!         -^^  ^^  ^^^  fecond  exception — the  condition 
===s==     of  the  bond  was — That  the  defendant  in  the 
Gallup     fuit  refered  to,  fhoiild  appear  in  the  county 
«^<n»/?     court  in  November.     In  declaring  upon  obli^ 
i^enni  on.    g^^jp^^j,  ^^i|.}^  condition,  it  hath  ever  been  prac* 
ticed  and  held,  that  the  declaration  fhould  con- 
'     tain  an  averment  that  the  condition  is  not  per- 
formed ;  otherwife,  the  plaintiff  does  not  ftxow 
that  he  has  caufe  of  a8:ion. — The  averment  in^ 
the  prefent  cafe,  is — That  Eldridge  appeared  at 
.November  court,  and  the  eaufe  was  adjourned 
till  February,  v/hcn  the  faid  Eldridge  again  ap- 
peared, but  Elliot  did  not  appear. — It  goes  fur- 
ther, and  fays — That  his  not  appearing  at  Fe- 
bruary court,  was  a  failing  to  appear,  accord- 
ing to  the  condition  of  the  bond:    The  only 
condition  was,    that  he  fhould  appear  at  No- 
vember court,  which  the  plaintiff  hath  not  de- 
nied.    The  words  coupled  v/ith  ^*  according  to 
**  the  condition  of  faid  bondy'   are.  particularly 
confined  to  February  court,  and  cannot,  by  any 
jeafonable  conftru6tion,  be  carried  back  to  No- 
vember ;  and  the  arguments  of  my  brethren 
Jhow  the  xieclaration  to  be  very  dubious  and 
uncertain  in  that  refpe6i:;  and  that,   upon  the 
•   principles  premifed,  ought  to  be  conflrued  moft 
favourably  for  the  defendant,   and  not  for  the 
plaintiff. 

As  to  the  third  exception — The  plaintiff,  it 
is  true,  avers,  that  he  made  diligent  fearch,  &c. 
and  returned  the  execution  into  the  files  of  the 
court,  (and  in  his  opinion)  made  a  proper  re- 
turn of  non  eft  inventus  thereon,  and  (he  fays)  it 
"was  in  due  form  of  law  ;  but  how  can  the  court 
know  that  it  was  a  proper  one,  or  in  due  form  of 
law.  No  fa6ts  are  fet  forth,  and  it  does  not  ap 
pear  that  the  return  contained  any. — It  hath 
been  ever  held  nee effary,  that  the  officer  fhouid 
fet  forth  his  doings  in  his  return,  fo  far  as  will 

enable 


I 


County  of  New-London,  MARCk  Term.'  43^ 

enable  the  court  to  judge  of  the  legality  there-  "^^Ig^ 

of,  if  true,   and  for  the  defendant  to  conteil  s=^J=i-:si 

them,  if  not ;  and  if  the  contrary  be  once  ad-  Gallup 

iiiitted,   it  will  involve  all  in  uncertainty,  and  againji 

deprive  the  defendant  of  his  legal  defence. —  Denuifan. 
Therefore,  it  appears  to  me,  that  the  declara- 
tion is  wholly  infufficient. 


438  Judge  Ellsworth's  Notes* 

Z^2i      ... 

Since  pikhlijliing  the  cafe  o/"  Adams  vs*  Kelloggp^ 

^againfi  ^cLute  p.  195J  I  have  been  favoured  with  Judge 

I^ellogg,         Ellsworth's  Notes^  with  permiffton  to  make 

what  ufe  of  them  I  pleafed, — They  contain  fome 

further  arguments ^  than  is  contained  in  the  Re^ 

port ;  and  as  this  may  be  a  kadiiig  cafe, .  and 

0/ importance  that  it  Jliould  be  fettled  on  per^ 

manent  principles,  I  here  infert  from  them,  the 

following  extraEto 

Adams  againjl  Kellogg. 

"  TN  fupport  of  the  power  oi zfetne  co-uert,  to  difpofe  of 
JL  her  lands  hy  will,  it  is  arg!fed-=-That  the  right  of 
difpofing  by  will  is  a  natural  right,  and  canpat  be  taken 
away  but  by  ftatute  ; — alfo,  that  the  commoa  law  gives 
he>'xhis  right  ;—moreovery  that  it  is  given  or  confirmed 
^  to  her  exprefsly  by  ftatute. 

**  Occupancy  feems  to  be  the  original  foundation  and 
meafure  of  property.  Jn  a  itate  of  nature,  a  perforv  having 
taken  poflefiion  of  a  fpot  of  the  earth,  or  a  beaft  of  the 
field,  which  before  were  common  to  the  Tons  of  men,  has  a 
right  to  continue  his  poiTelTion  and  ufe  of  them,  againft  all 
others,  as  long  as  he  pleafes ;  but  when  he  relinquilhes  his 
poffeilion,  as  he  does  at  death,  if  not  before,  they  are  again 
common  ftock,  and  free  for  the  next  occupant,  as  they  were 
for  him.— To  prevent  difpuies,  the  laws  of  fociety  point 
out  a  fuccefTor,.  and  fometimes,  from  principles  of  policy 
lliil  more  refined,  permit  the  laft  occupantto  do  it  himfelf. 
The  right  to  dired  the  fucceiTion  of  eftates  by  will-,  is  not 
^natural,  but  municipal  right— a  mere  creature  of  law  ; 
as  is  holden  by  all  modern  civilians,  and  is  well  illuftrated 
h)  Dr.  Blackjrone. 

*'  Admitting,  however,  that  a  right  of  devifing  eftate 
was  a  natural  right,  it  would  not  follow  that  a  feme-covert 
has  it,  though  there  be  no  ftatute  to  take  it  away.  Many- 
natural  rights  are  controuled  by  long  ufe  andcufk)ra,  which 
may  be  evincive  of  common  confent,  and  acquire,  to  every 
purpofe,  the  force  of  law.  Others  are  controuled  by  the 
reafon  of  the  cafe,  arifing  out  of  fome  fpecial  relation,  or 
^  condition  —We  have  no  ftatute  to  diveft  a  feme  covert  of 

her  perfonal  eftate  ;  and  yet  nobody  doubts  but,  by  the  ad 
or  condition  of  coverture,  it  becomes  the  hulband's  ; — nor 
have  we  any  that  fne  ftiall  not  contrad  and  bind  her  per- 
fon  and  eflate,  as  a  feme-foie  jsi^y  ;  yet  ftie  cannot  do  it. 

1? 


.  Adams  again/l-KELLOGC.  .4gg 

It  cannot,  then,  be  infered,  that  a  feme-covert  has  power     ^'       1=^ 
to  d^vife  her  eftate  from  the  fcore  of  natural  right.  "'lZj ^* 

*'  As  to  her  fuppcfed  cc»z/«o» /fiturjght  to  devife  lier  ef- 
tate — ^there  has  not  been  a  cuftom  or  any  adjudications  to      Adams 
found  it  upon,   either  in  this  country  or  that  from  which      againfi 
we  emigrated.  ^^ii^gg* 

,    **  The  right  oi desuifing  \%  of  a  much  later  date  than  that 
^iheiriiig  eftates^  both  being  political  inventions,   but  not 
equally  the  offspring  of  neceifity.     The  latter  we  trace  to 
Abraham'' s  time  ;  th3  former  only  to -S'e/o^'j, who  introduced 
it  into  the  Achenian  code,  toCupply  the  want  of  heirs  where 
there  was  no  iffue.     From  thence,  with  fome  enlargement, 
i%  was  copied  into  the  Roman  twelve  tables ;  and  has  ut 
length,  by  very  flow  degrees,    and  with  fome  alterations, 
been  adopted  by  the  greatell  part  of  Europe.     Denmark, 
Sweden,   and  Poland,   however,   had  not  the  ufe  ofwillsj, 
cither  of  real  or  perfonal  eftate,    at  the  beginning  of  the 
prefent  century,  and  f  am  noc  certain  that  they  have  yet. 
-   "  With  regard  to  the  latitude  in  which  the  Romans  ad«» 
mitted  the  ufe  of  wills,  who  extended  it  to  feme-coverts,  a 
diverfuy  of  circumftanees  ought  to  be  noted.— Marriage^ 
by  their  law,  formed  a  much  flighter  union  of  perfons  and 
property  than  is  the  cafe  with  us.     A  wife  might  contra<ft 
and  bind  her  perfon  and  eftate,  and  maintain  adions  in  her 
own  name  ;  nor  was  thehuiband  holden  for  her  debts,  con- 
trafted  before  or  after  marriage,   nor  ci'viliter  for  her  tref- 
pafTes.     She  might  retain  and  manage  her  perfonal  as  well 
as  other  eftate,   except  what  fhe  faw  fit  to  advance  to  her 
hufband,  to  entitle  her  to  a  jointure  j  and  this,   if  his  cir- 
cumliances  declined,   fhe  might  recover  back  again,  and 
have  an  aflion  againfl  him  for  it ;  and  nothing  more  than 
confent  of  parties  was  necefTary  to  dilToIve  the  marriage.— • 
Confbnant  enough  to  this  (late  of  things,   was  the  wife's 
power  to  make  a  will.     A  fon  could  not  do  it,  while  his  fa« 
ther  lived,  becaufe  he. w.as  under  the  power  of  the  father, 
and  confidered  as^-one  with   him.— From  this  heatheniili 
fource  fprung  the  idea  of  a  feme-covert's  power  to  make  a 
will,    and  has  been    abfurdly  adopted  by  fome  chriftian 
nations,    whom   clerical  influence  >as  been   fuflicient  to 
ihackle  with  the  einjil  la^..        How  extenfive  the  ufe  of 
wills  was  in  England,    before  the  conquefi,    if  there  was 
any,  is  uncertain.     The  feudal  fyftem  for  fome  time  after- 
wards, was  fi>incient  to  prevent  their  adoption  or  ufe,  as  to 
real  eilates  i  the  reilraints  from  that  fyftem,  however,  foon 
began  to  wear  away,   and  eftates  became  alieanable  in  fee 
feveial  centuries  before  the  fliatute  oi  Henry  VIII.   permit- 
ting their  difpofition  by  will ;  during  which  period,  though 
wills  were  contemplated  and  urged  for,  they  were  refufed, 
on  the  general  principle  of  its  being  unreafonable  that  heirs 
at  law  ihouid  be  diflnherited  by  a  will,  which. might  be  ob- 
tained 


44.^  "JU  DC  E*ELLSWORTH*S~NaTE8. 

sT^*      taincd  in  extremist  or  through  weaknefs  or  paflion.     Firt^]\y, 

4        .    ^7^7'      however,  the  ftatute  gave  liberty  to  devife  lands,  but  did 
not  extend  it  to  feme-covcrts.     The  words  are — **  That  all 

Adams       «*  perfons  being  fcired  in  fee  fimplc  (except  feme-co'verts; 

againfi  ,t  infants,  idiots,  and  perfons  of  infane  memory)  may i  by 
Kellogg.  t€  ^yjji  and  teftament,  devife  two-thirds  of  their  lands  held 
"  in  chivalry,  and  the  whole  of  thofe  held  in  focage,"  /.  e, 
hy  free  tenure,' — This  ftatute  does  ndt  take  away  from  feme^- 
coverts  (any  more  than  it  does  from  idiots)  a  power  of  de-^ 
viftng  their  lands,  but  refufes  to  grant  it  to  them,  and  fully 
i>€gates  the  idea  of  their  having  it  before,  or  at  common 
ianv.  Conformable  to  which  negation  has  been  the  under- 
ilanding  and  praAice,  as  well  ever  fince  Us  before. — Theex- 
preffions  ofLJ.  Cokey  in  his  comments  upon  Littleton^  which 
feave  been  followed  by  all  fubfequent  writers,  when  aSign- 
ing  the  feafons  why  a  feme-covert  cannot'devife  her  iandsy 
are,  not  that  the  ftatuteof  ^^^rj'  Vlll.  had  taken  away  her 
power^  but  '*  that  (he  has  no  power,  being  /uh  potejfate 
^*^  'viri  (under  the  power  of  her  hufband)  and  the  law  in- 
**  tendeth  it  fliould  be  done  by  coercion  of  her  hulfcand  ;*' 
\  purfuing  the  maxim   long  before  ufed  by  BraBon^  that  a 

wife  has  no  will,  being  fubject  to  the  will  of  her  hufband. 
And  upon  the  fame  principle  it  is,  and  not  that  of  any  fla- 
tute  difability,  that  marriage  is  a  revocation  of  a  will  made 
by  feme-covert  while  fole  ;  as  was  agreed  by  all  the  Judges 
in  Hembling*s  <-/?/?,  3 1  Elix.  and  has  never  been  contradidl- 

-^  ed.     Their  reafons  are—*'  That  as  the  law  will  not  allow 

*  **  any  cuftom  that  a  feme-covert  may  make  any  devife,  for 

**  the  prefumiption  that  the  law  has^,  that  it  will  be  made  by 
"  conftraint  of  the  hufband,  as  it  is  adjudged  3.  E.  3.  So 
*^  if  it  was  in  the  power  of  the  wife,  after  her  marriage,  to 
*»  revolve  her  will,  the  law  would  not  fulFer  the  continuance 
•f  thereof  after  marriage  ;   for  as  much  as  the  hufband,  by 

"  «^  conftraint,  may  caufe  her,  againft  her  will,  to  revoke  or 

''  continue  it." — It  is,  then,  a  common  law,  and  not  a  fta- 
tate  difability,  that  ihe  is  under. 

«'  It  is  contended,  however,  that  if  in  England  a  feme- 
covert  cannot  devife  her  real,  yet  Ihe  may  her  perfonal  ef- 
tate. — All  that  can  be  clearly  gathered  from  the  books, 
with'regard  to  this  point,  is—        > 

*'.2.  That  (he  may  make  a  will  of  perfonal  eflate,  with 
the  confent  of  the  hufband,  as  is  fometimes  done  purfuant 
to  marriage  fettlements ;  but  the  hufband  may  revoke  this 
at  any  time,  before  or  after  her  death,  until  it  is  approved. 
It  is  his  eftate,  and  in  fad,  his  confent  or  gift  thatdifpofes 
ofit. 
]  **"  2.  That  of  the  goods  and  chatties  of  another,  which 

fhe  has  as  executrix,  fhe  may  appoint  an  executor.  This 
is  but  exonerating  herfelf  of  a  trufi,  and  not  alienating  the 
property  ;  for  it  is  not  devifeablc.     This  may  be  doac  with- 

out 


Ad Aus  againjl  Kellogg.  441 

out  tha  hufband's  confent,  as  it  no  way  aifesSls  him  ;   for  the      =====5 
adminillration  would  not  belong  to  him,  bat  to  the  next  of      _    ^2^2.1 
kia  to  the  deceafed  tellator  ;   nor  is  it  of  confequence  for 
any  one  to  fee k  after,    fince  the  law  of  England,    like  our       Adams 
own,  fubjeds  an  adrainiftrator  to  account  for  the  furpius.  again]} 

**  3.  That  (he  may  will  to  her  hufband  hzt  paraphp-na'  ^^^ilogg. 
Hay  her  necelTary  apparel,  and  ornaments  fuitable  to  her 
rank  ;— but  they  are  the  hiifband's  already  and  if  he  im'^ 
vives  the  wife,  will  be  at  his  difpofal,  without  her  gift, 
though  while  (lie  lives  Ihe  is  not  to  be  ftriped  of  them  j 
and  if  the  hufband  dies  firft,  the  wife,  and  not  the  execu- 
tor, holds  them.     It  is  a  mere  ceremony. 

*'  4.  It  is  held  by  feme,  though  doubted  by  others,  that 
of  her  chofes  in  aBion^  as  debts  due  to  her,  &c.  ihe  may 
make  a  will.  Thefe  the  hufband  may,  at  anytime,  re- 
duce to  poiTelTion,  and  make  his  own  ;  and  can,  therefore, 
be  under  no  temptation  to  compel  or  influence  his  wife  to 
make  a  will  of  them. 

**  But  that  a  feme-covert  can,  by  will,  difpofe  of  any  of 
her  eftate,  fo  circumflanced  that  the  hoiband  could  be  pre- 
fumed  to  defire  a  will  of  it  for  himfelf,  or  his  friends,  is 
not  a  dodrine  of  the  Englifli  common  laiv,  nor  warranted 
hy  pradice  or  refolutions  of  our  own  It  certainly  was 
not  the  underllranding,  in  the  early  fettlement  of  this  coun- 
try, that  a  feme-covert  had  power  to  devife  lands.  The 
'chriilian  ideas  of  matrimonial  union,  and  of  the  power  of 
the  hulband  over  the  wife,  were  purfued  fo  far  as  not  to  fuf- 
fer  her  to  hold  lands.  The  hufband  took  the  real,  as  he  did 
the  perfonai  eilate,  and  fold  it  at  pleafure.  until  a  fiatute 
was  made,  rendering  her  confent  necelTary  to  validate  th@ 
faie.^ 

Still,  however,  it  is  fuppofed,,  that  whether  a  feme-co- 
Tert  has  a  natirral  or  a  common  law  right  to  devife  her  ef= 
tate  or  not,  yet  that  (he  has  a  ftatute  right  to  do  it.  The 
words  of  the  ftatute  are — ','  That  all  perfons,  of  the  age  of 
**  twenty-one  yeajj,  of  right  underflar.ding  and  memory., 
*'  whether  excommunicated  or  other  (not  otherivife  legally 
^^  incapable)  (hail  have  full  power,  author! ty^  and  liberty,- 
**  to  make  their  wills  and  teftaments,  and  all  other  lawful 
**  alienations  of  their  lands  and  other  eilates  ^  andtogivs 
*'  their  vote,  verdidt,  or  fentence,  in  any  matter  crcaufe.^' 
As  the  objeft  of  this  fiatute  plainly  is  to  afcertain  the  qua» 
lification  in  point  of  age,  not  in  all  other  refpeds  to  vali- 
date the  feveral  ads  therein  mentioned,  I  fnould  not  have 
concluded  from  it,  if  it  had  f^ood  without  any  excepting 
daufe,  as  it  did  before  the  late  revifion,  thata  feme-covert, 
being  twenty-one  years  of  age,  and  fane,  was,  in  all  re- 
ipeds,  qualified  to  make  a  will  ;  any  more  than  that  a  per- 
ion  being  of  that  age  and  fane,  was  in  all  refpefts  qualified 
to  judge  **  and  give  fentence  in  any  matur  or  caufe  ;'*  the 
H  h  h  one 


442 

Adams 
againji 
Kellogg, 


Judge  Ellsworth's  I^TofES.' 

one  concluiion  being  as  deducible  from  the  words  of  the 
ilatutc  as  the  other.  But  there  is  an  excepting  claufe,  and 
I  think  it  extends  to  feme-covert^.  If  it  does  not,  they 
are  "  fullV  empowered  to  make  (befides  wills)  all  other 
«*  lawful  alienations  of  their  lands  and  other  eftates/'  as 
any  other  perfon  might  do  ;  which  will  hardly  be  admitted : 
Alfo,  to  vote  in  fociety  meetings,  or  may  be  occafionally 
taken  to  fill  up  a  deficient  jury  ;  the  ftatutes  in  both  of 
thofe  cafes  being  filent  asto  <ex  or  condition,  and  the  Ha- 
tute  here  being  poiidve.  Thefc,  and  fuch  like  confequen- 
ces,  we  mufl  admit  from  the  ftatute,  or  elfe,  that  feme-co- 
vercs  are  within  the  exception  of  perfons  "  otherwifc  Ic- 
y  gaily  incapable." 

•'  To  endeaveur  to  apply  and  confine  the  exception  to 
perfons  under  the  care  of  feleft-men,  for  bad  hulbandry, 
will  not  do  ;  for  they  are  not  difabled  to  make;a  will  ;— to 
make  contrails  they  are,  as  thereby  they  may  fpend  their 
eilates,  and  become  chargeable  to  the  town  ;  but  their  wills 
do  not  expofe  the  town.  Jf  they,- or  other  perfons,  leave 
helplefs  and  needy  families,  their  eilates  will  be  holden  to 
.fupport  them,  be  their  wills  as  they  may. 

**  Finally,  if,  at  the  time  of  making  this  flatutc.  feme- 
coverts  were  under  fpecial  difabilities  to  difpofe  of  their 
eftates  by  wills,  they  are  within  the  exception  ;  and  fnch 
I  think  mull  have  been  the  common  underllanding  and  the 
vfadl.  So  flood  the  common  law  of  the  country  we  emi- 
grated from,  which,  together  with  numerous  regulations  of 
vits  ancient  flatutes,  built  on  general  principles,  we  brought 
with  us,  and  have  adopted  as  our  own,  varying  in  a  few 
inftances,  as  local  and  other  fpecial  circumftances  have  re- 
qnired  :  And  to  this  cede  do  we  turn  for  an  explanation  of 
terms  and  phrafes  ufed  in  our  flatutes,  and  to  know  what 
was  common  law  here  at  the  time  they  were  pened'  ■* 
This  flatute,  therefore,  feems  to  have  furnifhed  as  little  au- 
thority for  feme-coverts  to  make  wills  and  teflaments,  as 
the  law  0^ nature  pr  the  common  laiv  had  done  before. 

"  With  regard  to  the  policy  of  extending  fuch  a  power 
■to  feme-coverts-— it  may  be  remarked— That  there  is  not 
the  fame  reafon  for  it  as  there  was  for  the  flatnte  empower- 
ing a  hufband  to  fell  his  wife's  lands,  with  her  confent. 
From  a  fale  of  them,  (he  might  have  comfort  and  neceffary 
fupport,  but  not  from  a  devife.  Befides,  the  freedom  of 
her  confent  in  that  cafe  is  to  be  evinced,  as  fully  as  it  may, 
.  by  examination  before  a  Magiftrate  ;  which  circumftance 
alfo,  as  well  as  that  of  recording,  givei  immediate  noto- 
riety to  the  tranfadion,  that  all  concerned  may  fcrutini2ie 
it,  while  it  cao  be  done  to  adrantage.-— Nor  do  the  ge- 
neral rea-lons  urged  for  the  inftituiion  of  wills  feem  to  ex- 
tend to  the  cafe  of  a  feme-covert.  That  of  their  ufe  in 
aiding  family  government  does  not  \  becaufc  the  govern- 

'  ment 


Adams  ^^^z^  Kellogg*  443 

ment  is  not  placed  in  her  hands.     Nor  does  that  of  their     ^^^^^^ 
utility  in  Simulating  to  indaftry  and  eoconomy  ;  for  her  ^7^^* 

exertion  adds  nothing  to  the   llock  fbe  is  to  difpofe  of. 
The  crumbling  down  of  overgrown  eflates  need  not  be       Adams 
mentioned  here.- — » The  poffeffion  of  this  power  muft  be      agmnfi 
as  inconvenient  for  feme-coverts  as  it  is  unneceffary.     It     i^-^'i^SS* 
muft  fubjeft  them  to  endlefs  teaiing  and  family  difcord,  as 
well  as  frequently  their  heirs,  and  fometimes  their  chil- 
dren,  to  the  lofs  of  property,   which  the  law  has  been  ftu- 
dious  to  prefervc  for  them  :  Add  to  which,  expofed  as  they 
are,  to  coercions  imperceptible  to  others,   and  dangerous 
for  them  to  difclofe-- -placed  in  the  power  of  a  hufband* 
whofe  felicitations  they  cannot  reiiil,  and  whofe  commands, 
3!i  all  things  lawful;  it  is  their  duty  to  obey.     Their  wills, 
taken  in  a  corner,    and  concealed  from  the  world  till  they 
have  left  it,  can  afford  but  very  uncertain  evidence  of  the 
leal  wifhes  of  their  hearts. 

*•  Political  conliderations,  therefore,  fo  far  as  they  cam 
be  of  weighty  ferve  to  confirm  the  opinion,  that  a  feme-co- 
vert has  not  power  to  difpofe  of  her  eflate  by  will," 


lis     '  County 


444  County  of  Litchfield,  August  Term. 

—  31 

jlLl  sym/bury  Symsbury  Case. 

Cafe.  nr^H IS  was  an  aQ:ion  of  diffeifin,  brought  by 
X  the  proprietors  of  the  town  of  Symfbury, 
againft  Thomas  Bidwelly  demanding  the  furren- 
dery  of  a  tra6l  of  land,  in  the  town  of  New- 
Hartford,  defcribed  to  be  within  the  original 
grant  to  the  town  of  Symfbury. 
'   On  fpecial  pleadings,  the  cafe  ftated  for  the 

opinion  of  the  court,  was  this- That  on  the 

12th  day  of  May,  1670,  the  Governor  and 
•  Company  of  the  (then)  coloiTj^  of  Conneclicut 
were  well  feifed  of  the  land  in  queftion,  and  on 
that  day  granted  to  a  number  of  adventurers, 
airaB  o^  land,  called  Majjaco^  alias  Symjhiiry.— 
The  grant  was  in  thefe  w^ords,  viz. — **  At  a 
^^  court  of  ele6Uon,  holden  at  Hartford,  May 
*'  the  12th,  1670,  This  court  grant  MaJJaco's 
*^*  bounds  fliall  run  from  Farmington  bounds  to 
•^^  the  northward,  ten  miles  j  and  from  Wind- 
*'  for  bounds,  on  the  eaft,  to  ran  v/eftward,  ten 
'^  miles.''  The  grantees  purchafed  the  native 
right  of  the  Indians,  in  the  year  1680  ;  and  in 
March,  1686,  received  from  the  Governor  and 
Company,  a  patent,  defcribing  the  abuttals  of 
the  land,  in  thefe  words,  viz. — "  On  Farming- 
**  ton  bounds,  on  the  fouth,  and  to  run  eaft  and 
•*  weft  ten  miles  ;  and  from  the  fouth  bounds, 
**  north  ten  miles;  and  abuts  on  the  wildernefs 
**  on  the  north  and  on  the  weft,  and  on  Wind- 
,  "  for  bounds  on  the  eaft  ;  the  whole  tracl  be- 
•*  ing  ten  miles  fquare*" 

Afterwards  a  committee  was  appointed  by 
the  General  Affembly,  to  furvey  and  afcertain 
the  location  of  the  lands  contained  in  this  grant. 
The  committee  reported — That  in  December, 
1-687,  ^^^y  furveyed  and  marked  out  the  eaft 
,  bounds;  viz.  From  the  fouth-eaft  corner,  on  a 

norths 


County  of  Litchfield,  August  Term.  445 

north-nortb-eaft  point,  ten  miles,  and  then  "^{T^^ 
turned  a  riglu  angle  weft-nonh^weft,  and  run  ===^ 
that  courfe  one  mile  and  an  half,  to  a  fpruce  SymfDury 
tree  ;  and  did  not  proceed  further.  ^^^^-^ 

This  furvey,  fo  far  as  it  extended,  was  rati- 
fied and  coniirmed  by  the  General  Affembly, 
at  their  felTion  in  May,  1710;  and  at  the  fame 
feffion  another  committee  was  appointed  to 
complete  it.  This  laft  committee  began  at  the 
north-eaft  corner,  ereSed  by  the  former  com- 
mittee, and  run  a  north-north-ead  point  through 
the  fpruce  tree  ten  miles  j  then  turning  a  right 
angle,  run  a  fouth-footh-well  point  to  Farming- 
ton  line.  Which  laft  furvey  is  recorded  in  the 
office  of  the  town-clerk  of  Symibury,  but  not 
confirmed  by  the  General  Aifemibly. 

The  General  AlFembly,  on  the  26th  day  of 
January,  1686^  granted  to  the  proprietors  of  the 
towns  of  Hartford  and  Windfor,  all  the  lands 
v/eft  of  Symfbury  and  Farmington,  to  Oufato- 
nock  river;  and  they  received  a  patent  on  the 
23d  day  of  May,  1729:  And  upon  their  appli- 
cation, the  General  Affembly, in  October,  1727, 
appointed  Meffrs.  Kirfibcrlyy  and  others,  a  com- 
mittee, to  furvey  to  the  proprietors  of  Sym.ibu- 
ry  the  contents  of  ten  miles  fquare.-— — l^his 
committee  reported — That,  by  furvey,  they 
found  the  north  line  of  Farmington  (which  is 
the  fouth  line  of  Symfbury)  run  weft,  twenty 
minutes  fouth;  and  that  the  courfe,  from  the 
fouth-eaft  corner  of  Symfbury  to  the  north=« 
eafterly  corner  is,  north  thirty- three  degrees, 
eaft,  and  the  diftance  ten  miles  and  eight  rods  5 
from  which  they  run  the  northern  boundary,  in 
the  line  run  by  the  firft  commiittee,  eight  miles^ 
one  hundred  and  twenty-eight  rods ;  where 
they  affixed  the  norlh-wefteriy  corner,  and  run 
a  line  parallel  with  the  eaft  line,  toFanningtoi^ 
bounds,  "'  '    This  report  was  accepted,  and  ef-* 

tablifhed 


4i6  County  of  Litchfield,  August  Term* 

^TgT^     tablifhed  by  the  General  AfTembly,   and  the 
=3===     proprietors  of  Symfbury  compelled  to  pay  the 
Symfbury    expence. 
Cafe.  That  the  lands  in  qiieftion  are  fituated  with- 

out the  tra6l  furveyed  to  Symfbury  by  the  laft 
mentioned  committee,  but  are  within  ten  miles 
of  the  north  line  of  Farmington,  and  within  ten 
miles  of  the  weft  line  of  Windfor. 

The  defendant  claimed  by  a  title  derived 
from  the  propi'ietors  of  Hartford  and  Windfor. 
On  demurrer,  judgement  was  for  the  pkin* 
tiffs. 

3y  the  Court. -It  is  conceded  by  fh'^ 

pleadings,  that  the  land  demanded,  lies  withiir 
ten  miles  of  the  weft  line  of  Windfor,  and  the 
original  grant  and  patent  to  Symfbury  is  boundi 
ed  fouth  on  Farmington,  and  extending  from 
thence  ten  miles  north,  and  eaft  on  Windfor, 
extending  from  thence  Iqu  miles  weft-  and  the 
north  line  of  Farmington,  and  the  weft  line  of 
Windfor,  form  an  obtufe  angle  of  about  one 
hundred  and  thirteen  degrees : — We  are,  there- 
fore, of  opinion,  that  the  form  of  the  townfliip 
of  Symfbury,  according  to  the  true  conftru6lion 
of  the  original  grant  and  patent,  is  a  regular 
four-fided  figure,  called  a  Rhombus,  the  oppo- 
fite  fides  being  parallel,  and  ten  miles  diftant 
from  each  other ;  the  outlide  lines  are  confe- 
quently  of  equal  length,  and  fomething  more 
than  ten  miles,  and  include  the  lands  demanded. 
The  title  is,  therefore,  in  the  plaintiffs,  if  they 
have  not  been  divefted  by  fome  a6l  fubfequent 
to  the  original  grant. 

This  leads  us  to  confider  the  feveral  furveys 
and  proceedings,  in  order  to  afcertain  the  li-* 
mits  and  boundaries  of  the  grants,  as  they  are 
fet  up  in  the  pleadings : — 

The  furvey  of  the  eaft  line,  next  to  Wind- 
for, and  part  of  the  north  line,  to  ihtfpruce  tree^ 

by 


County  of  Litchfield,  August  Term.  447 

by.  the  firft  committee,  which  was  approved  by     ""^tTdT. 
the  General  Affembly,    and  afterwards  com-     ====r=^ 
pleted  by  a  fecond  committee,  was,  in  feme  re-    Symfbury 
fpe6ls,  a  deviation  from  the  original  grant;  for      ^^^^• 
it  curtailed  it  at  the  north-eaft  corner,  and  en- 
larged it  fomething  more  at  the  north-weft  cor- 
ner. How  far  that  may  conciiide  the  government, 
on  the  one  part,  and  the  proprietors  of  Symf« 
bury,  on  the  other  (it  being  done  by  their  mu- 
tual  confent)  is  not  neceffary  in  the  prefent  cafe 
to  determine. 

As  to  the  line  run  by  Kimheiiy^  and  after- 
wards accepted  by  the  General  Affembly,  which 
extends  the  v/eft  line  of  Symfbury  but  little 
more  than  eight  miles  from  Windfor— it  does 
not  appear  from  the  pleadings,  that  it  was  done 
at  the  requeft,  or  by  the  confent  of  the  town^ 
or  propri&tors  of  Symfbury,  or  that  they  ever 
agreed  to  it ;  for  akhough  thofe  fa8;s  are  al« 
iedged  h^  the  defendant,  yet,  when  traverfed 
by  the  plaintiffs,  the  defendant  waved  them,  by 
not  joining  the  traverfe  ;  and  they  do  not  ap- 
pear from  the  writings  fet  forth  in  the  pleadings. 
The  aB.  of  the  General  Affembly,  confirming 
Kimherly^slinciy  operated  to  reftrift  and  limit  the 
weftern  extent  of  the  jurifdidion  of  the  town  of 
Symfbury,  but  could  not  legally  operate  to  cur=- 
tail  the  land  before  granted  to  the  proprietors 
ef  the  town  of  Symfbury,  without  their  confent ; 
and  the  grant  to  Symfbury  being  prior  to  the 
grant  made  to  the  towns  of  Hartford  and  Wind- 
sor, under  which  the  defendant  claims,  v/e  are 
of  opinion  the  title  of  the  lands  demanded  is  ill 
the  plaintiffs. 

The  fame  point  was  determined  by  this  court 
the  fame  v/ay  the  laft  year,*  and  on  writ  of  error  *  ^^^  ^^'• 
to  the  fupreme  court  of  errors,  the  judgement  Hun^h^g-^ 
%vas  affirmed ;  which  we  conceive  hath  fettled  ton's 
the  law  in  this  cafe.  argument 

The  "^^^P^g«' 


448  County  or  Litchfield,  August  Term. 

31  ': 

Symfbury    '^^'^^  ^^fi  refered  to  in  the  preceding  page^  was  he^ 
Cafe,  twee7t  the  fame  parties,  and  upon  Jimilar  plead" 

ings. — His  Excellency  Governor  Hunting- 
ton, then prefided  in  the  Court,  and  dijfente'i 
in  opinion  from  the  reji  of  the  Judges. — Th^ 
Jub fiance  of  his  argument  mas  as  follows  ;~—   > 

FROM  the  fads  admitted  by  the  pleadings,  it  appears— 
That  the  defendant  derives  his  title  from  the  General 
AfTembly,  through  the  proprietors  of  New-Hartford  ;  and 
tbat  the  original  grant y  and  all  mean  conveyances,  which 
are  legally  brought  down  to  the  defendant,  confeffedly 
cover  the  lands  in  queflioa.  But  on  the  pare  of  the  plain- 
tifts,  it  appears— That  the  grant  to  thera,  as  proprietors  of 
Symfbury,  was  prior  to  the  original  grant  from  the  GenCr 
ral  AfTembly,  under  which  the  defendant  claims,  and  of 
confequence  mull  take  efFed  ;  and  the  whole  difpute  in  this 
cafe  is  to  ascertain  where  the  welt  line  of  Symfbury,  js'ic>» 
gaily  fettled  and  fixed.  .c.*^^ 

If  the  line  called  Kimherly^s  line  (often  mentioned  In  tBe 
pleadings)  is,  in  confirudion  of  law,  the  well:  line  of  the 
proprietors  grant  and  patent  of  that  town  legally  afcertain- 
ed,  then  it  is  admitted,  the  plaintiffs  have  no  title;  and 
judgement  ought  to  be  for  the  defendant. 

To  determine  this  point,  it  is  necefFary  to  con  fid  er  the 
grant  and  patent  to  Symfbury,  and  alfo  the  location  of  the 
patent,  and  confequent  tranfadions  thereon,  as  Hated  and 
admitted  in  the  pleadings. 

The  grant  of  Affembly  in  1670,  is  in  thefe  words,  viz.«-* 
*' This  court  grants  Maffacoe's  (now  Symfbury)  bounds, 
*'  fliall  run  from  Farmington  bounds,  to  the  northward 
''-ten  miles;  and  from  Windfor  bounds,  on  the  eaft,  to 
*'  run  weflward  ten  miles;  provided  it  do  not  prejudice 
"  any  former  grant,  and  be  in  the  power  of  this  court  tQ 
«*  difpofe.'* 

The  Indians'  deed  of  their  native  right,  which  the  pro- 
prietors obtained  in  j^^o,.  defcribes  the  grant  in  thefS 
words,  viz. — **  All  that  trail  of  land  lying  and  being  fi* 
•*  tuate  on  Farmington  bounds  fouthward,  and  from  thence 
**  to  run  ten  large  miles  northerly  ;  and  from  the  bounds 
**  of  Windfor  town,  on  the  call,  to  run  ten  large  miles  weft; 
"  the  traSi  or  parcel  of  land  being  ten  miles  fquare,  at  large.** 

This  deed  from  the  natives,  it  mufl  be  admitted,  con* 
veyed  no  title,  without  an  afV  of  affembly  to  eftablifh  it.-— 
The  patent  which  the  affembly  gave  the  proprietors  of 

Symbibury, 


Caie. 


Governor  Huntington's  Argument.  449 

Symrburys   in  i6S6,  defcribes  the  land  itv  thefe  words  :—      '^TgT' 

«*  AH  thofe  lands,  both  meadow  and  upland,  within  thefe C-QJl 

*'  abuttments :  Upon  Farmington  bounds  on  the  louth,  aitd     g      /^^ 
**  to  run  eaft  and  weft  ten  miles,  and  from  the  fouth  bounds      ^  .         >^ 
'*  north  ten  miles,  and  abutts  on  the  wildernefs  on  the  north, 
*'  and  on  the  wildernefs  on  the  weft,  and  on  Windfor  bounds 
*'  on  the  eaft  ;    the  whole  tra£l  being  ten  miles  fquare.'* 

As  the  grant,  fo  called,  in  1670,  mentions  no  grantees, - 
no  title  can  be  thereby  veiled  in  any  perfons,  without  fom& 
further  aft  :  I  ftiall  make  this  obfervation  only  upon  it-— 
That  the  meaning  is  the  fame,  in  the  defcription  of  the 
land,  though  not  quite  fo  explicit  as  in  the  words  of  the 
patent. 

But  it  is  neceiTary  to  confider  diftin6ily  the  defcriptioa" 
of  the  lands,    as  expreffed  in  the  patent;    for  a  mifimde-- 
ftanding  here,  feems  to  be  the   firft  and  real  fource  of  this 
unhappy  difpute. — ■!  (hould  have  thought,  let  any   intelli- 
gent reader  perufe'the  words  of  the  grant,  the  Indian  deed, 
and.  the  patent,  and  h«  would  readily  underfiand  the  extent 
of  the  land  to  be  ten  miles  fquare,   included  in  four  lines, 
each  ten  miles  long,  and  no  more.— 1  fnould  havefuppofed 
this  conftrHftion  ib  obvious,  that  all  ieniible  perfons  would 
liave  agreed  in  it;   but  I  find  from  the  different  trials  in 
cafes  on  the  fame  queftion,    there  are  almoft  as  many  dif- 
ferent conftrudiions,  for   the   true   meaning,  as  there  are 
perfons  who  judge,  or  aft  as  advocates  in  the   caufea  :— 
Thefe  various  conftruflions  are  reprefented  by  the  feveral 
plans  exhibited  on  the  trial,  and  make  not  only  fuch  a  va- 
riety of  different  figures,  but  alfo  differ  the  location,  as  to 
place,  in  fuch  a  manner,   as  demonflrate  they  muft  all  but 
one  be  wrong,  and  fully  convince  me,  they   are  fo  uncer- 
tain, that  neither  of  them,  except  the  confirudion  I  have 
now  given,   can  operate  to  fix  the  extent  of  the  granted 
premifss,  vyithout   fome  furtlier  adl  of  aflembly  to  locate 
the.  grant  with  certainty.— The   boundaries   in  the  pa- 
tent appear  to  me,  to  be  the  fame  as  if  expreffed  in  thef^ 
words,  viz.  Bounded  foutherly  on  Farmington  tea  miles, 
wefterly  on  the  wildernefs  ten  miles,  northerly  on  the  wil- 
dernefs ten  miles,  and  eafterly  on  Windfor  ten  miles;  the 
whole  traft  being  ten  miles  fquare.— It  is  certain,,  that  all 
parties  fuppofed,  that  the  two  given  lines  which  cannot  be 
altered,  viz.  the  line  of  Farmington  on  the  fouth,  and  the 
line  of  Windfor  on  -the  eaft  fide  of  the  patent,  formed  a 
right  angle,  which  would  make  the  form  of  the  granted 
premifes  fquare  ;  for  it  is  expreffed  in  terms  in  the  patent 
to  be  ten  miles  fquare,  and  alfo  expreffed  in  the  fame  man- 
ner in  the  Indians*  deed  to  the  proprietors,  which  muft: 
doubtlefs  be  didlated  by  the  proprietors. 

It  is  alfo  obvious,  from  the  fads  ftated,  that  in  attempt- 
ing to  locate  the  patent  by  adlual  menfuration,  the  miftakc 
111  was 


45<3  Governor  Huntington's  Argument. 


"1785. 


was  difcovered,  that  the  lines  of  Farmington  and  Windfof 

did  not   form  a  rights   but  an  obiufe  angle  ;  and  of  confe- 

^  .      q(jg„j^   the  grant  is  tirhombitst  and  not  2.  fquare,  as  was 

Symlbury    fuppofed  ;  and  the  contents  are  lefs  than  ten  miles  fquare  : 

Cafe,        What  then  muft  be  done  to  redify  this  millake  ?    Shall  we 

attempt  a  conftrudion  to  enlarge  the  grant,  contrary  to  the 

plain  meaning  of  the  words,  one  way  or  another,  fo  as  to 

make  it  as  large  as  if  ic  had  been  fquare  ?  It  appears  to  me, 

in  order   to  redify   this  millake,  it  was  neceffary  for  the 

affcmbly  to  undertake  and  make  good  'what  they  intended, 

by  r edifying  it  in  fuhfiance^ 

Accordingly,  it  appears  from  the  fads  admitted  in  the 
pleadings,  that  as  often  as  the  parties  interefled  at;terapt- 
ed  to  locate  the  lands,  in  aiy  meafure  different  from  the 
conilrudion  in  which  I  underlland  them,  as  before  menti- 
oned, djfHcukies  arofe,  nothing  was  legally  done  andcom- 
pleated,  controverfies  took  place  between  Symfoury  pro- 
prietors and  thofe  adjoining  on  the  weft,  committees  were 
chofen  mutually,  and  attempts  made  to  fettle  the  difpute  ; 
bat  nothing  effedually  done,  until  the  matter  came  before 
the  General  A ffembly  in  1727,  when  they  appointed  Mr. 
Ktmberlyy  Sec.  to  furvey  the  lands^  and  gave  them  inftiuc- 
tiop.s  fo  to  locate  the  fame,  as  to  give  the  proprietors  of 
SymilDury  the  contents  often  miles  fquare  :  This  was  done 
by  Kimberlyy  &c.  and  approved  by  the  General  Aflembly, 
and  the  proprietors  accepted  the  fame ;  by  which  means 
they  obtained  a  complete  title  to  the  whole  lands  contain- 
ed in  the  location,  although  a  valuable  part  of  it,  at  the 
north-weft  corner,  is  without  the  limits  of  the  grant  and 
patent. 

I  fay  the  proprietors  accepted  of  this  location  ;  for  it 
appears  from  the  pleadings,  that  the  proprietors  foon  after 
fui-veyed,  and  laid  out  all  the  lands,  up  to  the  north-weft 
corner ;  the  records  of  the  furveys  being  recited,  in  which 
they  defcribe  Kimberly^s  line  as  the  town  line,  and  hold  the 
fame  quietly  to  this  day ;  which  appears  to  me  the  fullefl 
evidence  of  an  acceptance  of  this  location,  that  a  corporate 
body  could  give,  and  that  all  parties  interefted  are  con- 
cluded by  it. 

It  is  argued  by  the  counfel  for  the  plaintilFs,  that  it  was 
a  common  pradice  in  antient  times,  to  make  large  raeafures 
in  locating  grants,  which  ought  to  be  confidered  in  this 
cafe  :  This,  no  doubt,  was  often  the  cafe  :  The  caufe  and 
reafons  are  obvious  :  Lands  were  then  of  little  value,  the 
proprietors  interefted  generally  procured  the  furveys  to  be 
made,  and  there  were  no  adjoining  proprietors,  whofc  in- 
terefts  were  encroached  upon,  or  affeded,  by  extending  the 
location  beyond  the  grant  ;  afterwards  the  adjoining  lands 
were  taken  up,  and  bounded  by  the  former  ideation,  &c. 

Again, 


Governor  Huntington's  Argument.  45I 

Again,  in  locating  lands  among  proprietors  in  the  fame      ^TST^ 

town,  it  was  not  only  common,  but  neceffary,  to  (rze  the      ^ Z— J4 

lots,  Tome  more  fome  lefs,  to   make  them  equal  in  value, 

though  all  called,  lay  for  inftance,  hundred  acre  lots.  .Symibui'y 

But  wherever  there  are  feveral  grants  made,  defcribed  v^ale. 
only  by  length  of  lines  and  adjoining  to  each  other,  one 
proprietor  cannot,  by  location,  extend  his  grant  beyond 
the  length  of  line,  at  the  expence  of  his  neighbours,  and 
fwallow  up  all  or  any  part  of  the  adjoining  proprietor's 
grant.— This  is  the  prelent  cafe  ;  it  appears  no  location 
was  ever  made  of  the  town  of  Symlbury,  until  after  the  ad- 
joining lands  had  been  granted  away  ;  and  each  proprietor 
hath  an  equal  right  to  large  meafure  in  the  location  of  their 
own  lands ;  and  of  confequence,  all  not  only  may,  but  mufl 
be  confined  to  the  true  coniirudion  of  their  refpedlive  grants. 

This  fubjed,  however,  fiiews  us  how  conclufive  a  location 
js  between  all  the  parties  intereiled,  when  once  legally 
made  and  accepted  by  them,  although  it  may  vary  from 
the  defcription  in  the  grant. — We  frequently  find  in  trials 
of  this  nature,  that  the  boundaries  extend  in  many  cafes 
beyond  the  kngth  of  line  mentioned  in  the  grant  ;  but  it 
is  not  uncommon  to  find  inilances,  in  which  the  boundaries 
fall  fhort  more  or  lefs  :  But  in  all  thefe  cafes,  the'  bounds 
being  proved,  they  govern,  as  being  deemed  in  law  the 
greater  certainty. 

How  frequent  do  we  find,  that  the  lines  between  adjoin-, 
ing  towns  are  ilraight  lines  in  their  patents,  but  by  the  lo- 
catioc  and  perambulations,  the  monuments  erected  vary 
very  ^materially  from  a  ftraight  line  ;  yet  wherever  thefe 
bounds  are  proved  to  have  been  eflablifiied  and  admitted 
by  the  parties  in  i^t€reit>  by  perambulation  or  otherwife, 
they  are  always  judged  conclufive  5  and  valuable  tra£ls  of 
land  are  held  upon  this  principle,  in  isany  towns  of  this 
ftate. 

Among  the  many  conllru^Uons  given  to  the  patent,  this 
is  one,  viz.— -That  all  the  four  lines  muft  be  equally  extend- 
ed, fo  far  as  to  make  the  lines  tei\  miles  afunder,  whea 
meafured  in  a  perpendicular  diredion.  This  will  make 
the  fide  lines  each  about  twelve  miles  long,  and  include 
upwards  of  fix  thoufand  acres  more  than  the  contents  of  tea 
miles  fquare :  But  this  conftrudion  appears  to  me  abfurd, 
and  liable  to  many  unanfwerable  objections  ;  for  it  admits 
the  principle,  that  the  grant  is  included  in  four  lines,  ail 
of  equal  length  ;  and  that  the  courfe  and  direction  of  the 
two  given  lines,  that  is,  Farmington  on  the  fouth,  and 
Windlbr  on  the  eaft;,  afcertain  the  courfe  and  direifticn  of 
the  Other  two  lines,  which  are  oppofite.  This  principle  is 
undoubtedty  juft;  but  this  being  admitted,  nothing  re- 
mains, but  to  run  the  lines  out,  in  the  fame  diretricii,  the 
kngth  of  line  exprefifed  in  the  patent,  vis.  ten  miles,  aiid 
I  i  i  2  the 


452  GoVERlNfOR;HuNTlNGTON*S  Ar45UMENT.^       _ 

=55T===     ^}jg  patent  is  afcertained.     We  may  as  well  meafure  t>ut 

'  ^'^    '21      ten  miles  from  one  angla  towards  its  oppofite  angle,  to  fix 

the  extent,  as  in  arty  other  diredion  whatever,  except  only 

SymfDiry    ^^e  direftion  in  which  the  grant  is  laid. 
Cahj.  Again,  this  eonftrudion  contraditts  the  exprefs  words  of 

the  patent  :  The  words  are,  '*  nvithin  the/e  abuttments-^ 
*'  upon  Farmington  bsunds  on  the  foutht  and  to  run  eaji  and 
**  Tjoejl  ten  miles ^^^  &c- — Now,  if  upon  any  conftrudion  we 
may  extend  twelve  miles  on  this  line,  we  may  as  well  ex- 
tend twenty,  if  need  be,  to  cover  a  particular  claim.—— 
It  farther  appears,  thisconftruilion  would  give  the  proprie* 
tors  of  Symfbury  a  large  traclof  land  at  the  norih-eaft  cor- 
ner, which  they  have  never  claimed,-but  always  contented 
thsmfelves,  by  extending  their  patent  ten  miles  only  on 
Windfor  line  ;  which  feems  to  be  the  true  conftruftion  of 
the  patent, 

1  think  it  ought' tcibs  admitted  in  the  cafe  before  us,  that 
the  proprietors  of  Symibury  could  not  have  their  grant 
taken  from  them,  or  curtaikd,  even  by  the  General  Af- 
fembly,  without  their  co^fent  ;  and  when  the  furvey  was 
made  by  Kimberly,  Sec,  and  approved  by  the  AfTembly,  the 
V  ^  proprietors  had  their  election,  either  to  rely  upon  the  con- 

Itrudioft  of  the  words  of  the  patent  for  their  title,  or  to  ac- 
cept of  the  location,  and  thereby  reduce  it  to  a  legal  and 
praflical  certainty  ;  they  wifely  chofe  the  latter,  it  being 
material  in  their' favour,  and  fubftantially  fulfilling  the  ori- 
ginal intention  of  all  parties,  by  enlarging  the  patent  to 
the  contents  often  miles  fqu^re ;  and  though  it  could  not  be 
laid  in  afquareform^Jby  meansof  the  two  given  lines  before 
mentioned,  yet  the  form  and  quality  is  equally  good  ;  for 
I  do  not  find  it  fuggefted  in  any  of  the  pleadings,  that  the. 
the  proprietors  are  injured  by  the  form  or  quality  of  the 
lands  circumfcribed  in  the  location.  ^ 

If  we  take  up  this  cafe  upon  the  fads  dated  in  the  plead- 
ings, in  a  fummary  mariner,  and  without  any  refined  fub- 
tilties,  confider  it  on  the  principles  of  fubftantial  right,  it 
appears  in  this  light,  viz.— That  the  defendant's  grant, 
and  all  mean  cojjveyances,  confefledly  cover  the  lands  de- 
*  manded :  That  the  grant  and  patent  to  Symfbury,  at  the 
times  they  were  made,  were  intended  to  include  atraftof 
territory  ten  miles  fquare,  but  did  adlually  include  all. 
the  lands  within  four  lines,  each  ten  miles  long,  and  no 
more,  in  form  of  a  rhombus,  or  diamond  figure  : — This  being 
lefs  than  ten  miles  fquare,  occafioned  difputes  and  aneafi* 
nefs  when  the  miftake  was  difcovered,  and  various  con- 
ftru£lions  of  the  patent,  which  it  will  not  bear,  in  order  to 
help  out  this  millake  :  That  finally,  when  the  matter  carae 
before  the  Affembly,  in  1727,  they  took  up  the  miftake 
where  it  was  obvioufly  found,  and  upon  principles  confo* 
naat  to  Uw  and  equity  ;  by  »  locauon«  refilled  fubftaa* 

liidljr 


Governor  Huntington -s  Argument^  '45^ 

tially  this  miftake,  by  making  the  furvey  in  good  form,      ^"ToT^ 
and  as  large  as  the  contents  of  ten  mites  fquare ;  which      ^Z?^ 
the  pattentees  accepted,  and  thereby   obtained  an  indif- 
putable  title  to  the  fame,  which  they  Hi II  quietly  enjoy.         oyjinibury 

Now,  fhall  we  ftill  extend  the  weft  line  of  Symfbury  about  ^^^€* 
two  miles  further  weft,  and  take  upwards  of  four  thoufand 
lacres  in  addition,  as  is  earneftly  contended  by  the  counfel 
for  the  plaintiffs  ?  Take  it  from  the  prefent  poffeiTors,  who 
have  honeftly  purchafed  the  fame  ?  And  for  what  purpofe, 
or  on  what  principle,  fhall  we  give  it  to  the  adverfe  party, 
who  have,  by  meafuration,  the  full  contents  of  their  patent 
without  it  ? 

lam,  therefore,  of  opinion,  that  thefe  antlent  tranf- 
aflions  of  the  furvey  and  fetllement  q{  Kimherly* s  line,  are 
too  facred  to  be  fet  afide  j  and  that  judgement  in  this  caie 
ought  to  be  for  the  defendant. 


CoVHTt 


454 


County  of  Litchfield,  August  Term< 


786. 


Marih 
again ji 
Steele. 


Marsh  againjl  Steele, 

THE  declaration  in  this  cafe  counted  upon 
a  certain  deed  of  bargain  and  fale,  given 
by  the  defendant  to  the  plaintiff,  "  of  one  full 
**  right  or  fhare  of  land,  in  the  townfliip  of 
"  Water  bury,  in  the  ft  ate  jof  Vermont  ;  the 
*'  original  proprietor  being  John  Nelfon,^''-— — - 
The  deed  ,was  recited  in  the  .declaration,  fol- 
lowed with  an  averment,  that  the  defendant 
had  not  kept  and  performed  his  covenants — 
and  concluded  with  an  allegation  of  fraud  in 
the  grantor,  for  that  there  w^as  no  fuch  right  of 
land  in  faid  tov/nfliipof  Waterbury  as  defcribed 
in  faid  deed,  &:c. 

Under  a  general  demurrer,  it  was  objeBed — 
That  this  declaration  was  too  vague  and  un- 
certain, in  that  it  did  not  point  out  the  quan- 
tity of  land  intended  to  be  conveyed: — That 
it  was  incoherent,  in  one  part  declaring  as  up- 
on the  covenants  in  the  deed,  and  in  another 
part,  as  for  a  fraud. 

But  it  was  adjudged  fufficient. And, 

By  the  wn.QLE  Court. This  declara- 
tion is  fubftantially  good  for  an  adion  on  the 

cafe,  founded  on  fraud. It  appears  that  the 

defendant,  for  a  valuable  confideration  in  hand 
paid,  undertook  to  fell  one  whole  right,  in  a 
certain  townfhip  of  land,   in  the  ftate  of  Ver- 
mont; by  which  right  is  to  be  underftood,  as 
10  quantity,    a  certain  fhare  or  proportion  of 
the  faid  townfhip,    and  as  to  title,  fuch  title  as 
the  faid  ftate  had  to  grant  in  the  unappropriated 
lands  within  its  limits :  And  that  the  defendant 
identified  the  right  that  he  undertook  to  fell, 
calling  it  a  right  of  which  John  Nelfon  was  the 
originial  proprietor  or  grantee — when,  in  faft, 
the  defendant  had  no  fuch  right,  and  the  faid 
^7,1.;  -L.  Ncljon 


County  of  Litchfield,  August  Term.' 


455 


Nelfon  was  not  an  original  proprietor  in  faid  ^^^^ 

town ;  which  the  defendant  well  knew,   at  the  =J=Z~ 

time  of  faid  pretended  fale  ;— and  that  he  in-  Marfh 

tended  to  deceive  the  plaintiff,  and  did  deceive  a'gm^ijf 

him,  to  his  damage,  which  he"^  here  fues  for—  Steele, 
Vv^hich  faQs  are  fufBcient  for  the  plaintiff  to  re- 


cover upon, 


SUPREMK 


456 


Supreme  Court  of  Errors,  May  Term; 


worth 

agatnft 

Sanford. 


Wadswo'rth  tigainjl  Sanford* 

ERROR  from  the  fuperior  court,   upon  a 
bill  of  exceptions. The  defendant  in 

error,  pleaded  in  abatement  of  the  writ — That 
the  bill  of  exceptions  on  which  it  was  founded 
contained  only  a  general  flating  of  the  fa6ls  and 
argunients  in  the  caufe,  and  was  drawn  up  af- 
ter a  verdi6l  of  the  jury,  and  judgement  there- 
on ;  which  is  not  warranted  by  any  law  or 

ufage  of  this  ftate.- And  upon  argument, 

the  Court  refolved — That  a  bill  of  exceptions, 
taking  up  the  whole  caufe,  as  in  this  cafe,  is 
not  admiflible,  and  can  be  no  legal  foundation 

for  a  writ  of  error. So  the  procefs  was  djf-. 

miffed.' — {Vid^  ^M' Donald  again/l  Fi/Iur,  anU 

339-) 


T     A     B     L     E 


OF      THE 


P.^.R■■  I  N  :C  IPAL     MATTE  R  S, 


ABATEMENT. 

J.'YF  feveral  defendants  are  de- 
'  A  Tcribed  in  the  procefs  as  be- 
ing inhabitants  of  this  ftate,  the 
Ijrocefs  Ihall  abate  if  there  be 
not  ferviceon  them  all,  though 
fome  of  them  at  the  time  offer- 
vice  may  not  be  within  the  iiate. 
Milli  vs.  Bifiop,  4. 

2.  The  defendant  may  plead  in 
abatementto  the  fame  procefs 
as  often  as  the  court  aiiows  the 
plaintiff  to  amend.     Ibid,  5 . 

5.  A  writ  (hall  not  abate  upon 
fuggeftion  that  the  authority 
who  figned  it,  direfting  it  to  an 
ind.f^crent  perfon  to  ferve,  has 
made  a  falfccertiEcate.  Law- 
rence vs.  Kingman^  6^ 

^.'On  a  joint  contrail,  if  the  fait 
be  againft  one  only,  it  is  mar. 
ter  of  abatement,  but  cannot  be 
taken  advantage  of  under  the 
general  iffae.,  Bradley  vs;  Camp, 

5.  In  an  aftion  for  private  afiault, 
if  the  jiiftice  omit  to  certify 
that  the  complainant  {hewed  his 
wounds,  and  made  oath  to  the 
ia<^,  it  can  be  taken  advantage 
of  only  by  plea  in  abatement. 
Northrop  vs.  Brt/Jh^  108. 

6.  The  court  refufed  to  abate  a 
procefs  in  which  the  defendant 
was  under  a  confer vator,  who 

K  k 


had  not  been  notined,  but  or- 
dered a  continuance,  that  notice 
might  be  given,  ^noivvs^Ja' 
trims   174. 

7.  Abatement  to  a  writ  of  error  is 
in  n&ture  of  a  demurrer,  and 
not  within  the  rule  of  other  pleas 
in  abatement.  Church  .v&*  Mel- 
lamy,  289. 

8 .  Plea  in  abatement,  that  the  par- 
ties tQ, the  fait  were  not  inhabi- 
tants of  thia  Hate,  but  only  oc- 
cafionally  here  when  the  fuit 
was  commenced,  over-ruled. 
Place  vs.  Lyouy  404.  , 

^/i^  Petition  in  Equity,  No. 
3* 

ACCOUNT. 

i.Aflionof  account  will  He  in 
every  cafe  where  a  perfon  has 
received  money  to  the  ufe  of 
another,  efpecially  if  it  be  of  a 
third  perfon,  to  be  delivered 
over.   Mum/ord  \s.  ji-very,  163. 

2.  Motion  for  auditors  in  an  af- 
fumpfit,  on  the  ground  that  it 
was  fubftantialiy  an  adion  of  ac- 
count, over-ruled  by  the  courto 
Wetmore  vs.  Wood  bridge »  16,4. 

ACT  ION. 
I.  Aflion  doth  not  lie  before  a 
Ji'-illice  of  the  Peace  for  perjury, 
except  for  damages  where  there 
ha«  been  a  previous  corvidion 
of  the  crime.  Fa^ev^,  Camp,  S, 


A  TABLE  OF  THE  PRINCIPAL  MATTERS, 


2.  Nor  doth  it  lie  to  lubjetSk  the 
decifi^n  of  one  Jiiftice  of  the 
Peace  to  the  re-examination  or 
impeachment  ofanother.  Ib.g. 

3.  Adliosi  doih  not  lie  upon  ;a  ver- 
bal concratfl,  in  oppofitiou  to  a 
written  one.      Bradley  vs.,  Bloi^ 
get,   23. 

4  A.ftion  fjT  falfe  imprifdnment 
m;-iy  be  maintained,  where  one 
p/Tt^cj.es  procels  without  canile 
(f  aclion,  and  caufes  another  to 
b^  an-^fted,  with  defign  to  ex- 
tort money  from  hira,  without 
any  .legal  or  equitable  founda- 
tion.     Stoddard  \%.  Birdy(^K^. 

5.  Aftion  for  private  aiTauU  will 
lie  where  two  commit  an  afl*ault 
jointly,  out  of  the  prcfence  or 
view  of  others.  Northrop  vs. 
Brujhy    108. 

6.  Adlion  of  indebitatus  ajfuntpjit 
for  money  hid  and  received, 
doth  not  lie,  upon  a  miftake  in 
a  fettlement  on  which  an  ac- 
quittance is  given.  Hart  vs. 
Smith,   127. 

7.  Though  a  fpeclal  aflion  on  the 
cafe,  pointing  out  fuch  miftake 
may  be  fullained.     Ibid.  128. 

8.  A  contrary  opinion  is  held  by 
Judge  Ell/wort /p.     Hid.  129. 

g.  Aftion  doth  not  lie  in  this  Itate 
upon  a  contraft  made  in  a  fo- 
reign country,  between  aliens, 
and  which  was  to  have  been 
there  performed.  BrinUy  vs. 
A'very,  25. 

JO.  Adion  of  indebitatus  ajfumpfit 
doth  Y\e  in  favour  of  a  furety 
againft  his  principal,  for  money 
paid  for  the  benefit  of  his  prin- 
cipal.    Bunce  vs.  Bunce,  I'^'j. 

n.  A6lion  againft  a  Juftice  of  the 
Peace,  for  taking  infufHcient 
bonds  in  replevin.  Palmer  vs. 
Seymour,  139. 

12.  A^ion  of  account  will  lie  in 
every  cafe  where  a  perfon  has 
received  money  to  the  ufe  of 
another,  efpecially  if  it  be  of  a 


third  perfon  to  be  delivered 
over.  Mum  ford  Vi,  A^ery,\^^, 

3.  A(::tion  qui  tam^  for  any  mat- 
ter of  a  crimi.ial  nature,  may 
be  profecuted  in  the  county 
where  the  complainant  dwells* 
although  the  crime  was  com- 
mitted in  another  county.  Gil- 
bert vs.  Mflrrj,  401. 

A  D  M  I  N  1  S  TR  A  T  OR. 

1.  Adminiftrators  are  not  liable  to 
be  arrefted  for  the  debts  of  .the 
deceafed  whom  th^y  reprefwit, 
Sioddard  vs.  Bird.  68. 

2.  Nor  are  they  liable  10  be  fued 
at  all  pending  a  reprcfcntaticB 
of  infoivency.     Ibi-d.-  69.  ■ 

3.  Adrainiltrator  cannot  profecutc 
his  claim  to  the  eftate  of  the  de- 
ceafed, nor  apply  the  fame  to 
the  payment  of  debts,  un.til  ,he 
has  caufed  it  to  be  inventoried. 
GoWs  caje,   103. 

4..  An  adminiftrator  being  ap- 
pointed in  the  ftate  where  the 
deceafed  dwelt,  may,  by  virtue 
of  fuch  appointment,  fue  in  this 
ftate.  Nicole  vs.  Mumford,  270. 

5.  Pending  the  proceedings  on  an 
infolvent  eftate,  a  creditor  who 
hath  had  his  claims  allowed  by 
the  commiflioners,  cannot  fuf- 
tain  a  fuit  for  the  recovery  of 
new  difcovcred  cftaic  ;  but  his 
remedy  would  be,  with  the 
other  creditors,  upon  the  admi- 
niftration  bond,  in  cafe  the  ad- 
miniftrator fliould  refufe  to  in- 
ventory it.    Tyler  ys,  Ccok,  391. 

6.  A  claim  of  debt  againft  the  ef- 
tate of  a  deceafed  perfon,  not 
being  exhibited  to  the  admini- 
ftrator within  the  time  limited 
by  the  court  of  probate,  is  for*- 
clofed,  and  no  court  can  relieve 
againft  it.  Fanning  and  othtrs 
vs.  Coit,  423. 

/^/Vf  Interest,  No.  2.    Taxes.- 

ADULTERY. 

Fide'EviDS.iiCE,  No,  4. 


A  TABLE  OF  THE  PRINCIPAL  MATTERS. 


AGREEMENT. 

Vide  Frauds  and  Jlatitts  i?/ Frauds, 
.  No.  4.— Book-Debt,   No.  7.— 
Condition,  No.  2. 

A  L  I  E  N.  ^ 

s.  An  a£^icn  is  not  maintainable 
in  th4s  ilate  uport  a  contrad 
made  in  a  foreign  country,  be- 
tween citizens  of  that  country, 
and  to  be  there  performed. 
Br'tnley  vs.  Avery ,  25. 

2.  A  Britifh  fubje^  who  acquired 
lands  in  the  Hate  of  Connedi- 
cut  before  the  late  revolution, 
is  not  an  alien,  and  may  main- 
tain an  adion  to  recover  the 
poiTeffion.  Afthorp  vs.  Backus » 
413. 

AMENI>MENT. 

The  record  allowed  to  be  amend- 
ed, by  mfeming  the  word  coun- 
try in  the  place  of  the  word 
court,  in  the  clofing  of  the  ifiue. 
Phelps  vs.  Safifordt  343. 

Vide  Abatement,  No.  2. 

A  P  P  E  A  L. 

I.  Appeal  lies  after  default  and 
hearing  in  damages,  Meadxs. 
Cog^ pally  17. 

s.  No  appeal  lies  in  an  action  of 
book-debt,  unlefs  the  debt  ftated 
be  more  than  twenty  pounds, 
notwithftanding  the  conclufion 
i=n  damage  may  be  tor  a  greater 
fum.      Whom/on  vs.  Wales,  35. 

3.  If  the  duty  is  not  certified  to  be 
paid  upon  an  appeal,    the  ap 
peal  is  void.    Hen/havo  vs.  Coe, 

4.  No  appeal ^s  in  an  adion  qui 
tamy  for  theft.  Coit  vs.  Geer, 
269. 

5..  No  appeal  lies  in  an  adion  oi 
book  debt,  if  the  account  ftiown 
on  oyer  be  lefs  than  20I.  al- 
though the  demand  in  the  de- 
claration may  be  more.  Wil- 
liams vs.  Liedsi  278. 

Kk 


6.  A  bond  for  money,  vouched  by 
two  witnefles,  counting  in  the 
condition  upon  a  certain  mort- 
gage deed  of  land,  given  as 
collateral  fecurity  for  the  fa  me 
debt,  is  not  appealable.      280. 

7.  Appeal  to  an  adjourtjed  court 
doth  not  lie.  Fello<iv:.  vs.  Car- 
peitter,  ^66. 

8.  One  of  the  fubfcribing '.vitneAls 
to  a  bond,  becoming  interelled 
afterward,  will  not  render  the 
fuit  on  fuch  bond  appealable. 
Fleming  vs.  Reynolds,  387. 

APPEARANCE. 
Vide  Foreign  Attachment,  No.  3. 
Prochein  Amy^   No.  3,  4,  5-— 
Bail. 

A  p  p  R  a  r  E  R. 

1.  What  a  prifoner  difclofes  to 
the  State's  Attorney,  upon  ap- 
plication to  be  made  an  approv- 
er,(liall  not  be  given  in  evidence 
againil  hirU'.  The  Siaie  vs. 
Phelps,  2S2. 

2.  But  confidential  confeiTions  to 
any  other  perfons,  may.  The 
State  vs.  Thomfo?iy  345. 

ARBITRATION, 

Arbitrators  are  at  liberty  co  de- 
cide upon  any  principles  which 
in  their  opinion  will  do  juiiige 
between  the  paities.  Parker 
vs.  Avery,  3.5.3. 
,  Vide  Award — Deeds,  No.  2. 

ARREST. 

Whethe?  an  ofHcer  may  break  an 
inner  door  to  arreft  adebior, 
after  having  peaceably  entered 
the  outer  door,  doubted.  Fitch 
vs.  Lo-v eland,  383. 

Vide  Adminiftrator,  No.  1. 

ARREST  OF  JUDGEMENT. 
I.  IF  a  j;uror  before  trial  has  given 
his  opinion  in  a  caufe,  and  this 
be    not    known   by    ihe   party 
k  2 


A  TABLE  OF  THE  PRINeiPAL  MATTERS-- 


againft  whom  the  opinion  ope- 
rates,  it  is  fuffieient  caufe  for 
anarreft.  Tnxieedy  y&.BruJh,  13. 

2m  Otherwife,  if  it  appears  to  have 
been  given  under  fuch  circum- 
ftances  as  not  to  have  influenc- 
ed the  verdidl.  Woodruff  vs. 
W hit  tie  fey  t  6z. 

3.  On  a  general  verdiS  the  court 
will  not  refort  back  to  the  evi- 
dence on  which  it  was  founded, 
to   fet   it    aftde.     Woodruff  \s, 

Whittlefey,   61.' Church   vs. 

Norivicb,  142.- — 273 — 277.  _ 

4«  An  cbjedihoa  to  a  jaror  which 
would  not  be  a  ground  for  a 
principal  challenge,  Ihall  not 
be  admitted  after  verdid,  to  fet 
it  afide.     Chapman  ys.  Welles , 

133- 
e.  Judgjement  arreftcd  where  the 

iifue  fourjd  was  immaterial. 
Palmer  vs.  Seymour,  339. 
6i  Ix  h  not  fuffieient  caufe  of  ar- 
reft,  that  the  Judge  who  tried 
the  cafe  was  related  to  one  of 
*  the  parties.     Church   vs.    Nor- 

nvichy  142. 
y.  It  is  good  caufe  for  a  challenge, 
that  a  juror  now    impanneiled 
was  on    h'e  jury  when  the  cauie 
was  tried  in  the  lower  courr,  but 
rot   fufiicient    caufe    to    arrelt 
juiigement.     Bd/otus   vs.   WiJ- 
iiamSi  166. 
S.-That  one  of  the  Jurors  had  not 
taken  the  oath  ot  fidelity   is  not 
fuffieient    caufe    for    arreft    of 
judgement.     Gilbert  vs.  Rider. 
184. 
g  Nor  is  it  fuffieient,    that  any  of 
the  jurors  are  not  ficehoiders. 
i6td.  184.. 
to.  It  is  not  fuffieient  caufe  of  ar- 
re(^,    that  thf  jury  have  mifap 
prehended  the  legal  coni  quence 
of    their   verdict.     J'homjon  vs. 
Church,  til. 
l\.  Motions  in  arreft  not  admiffi- 
ble,  un!<?fs  made  within  twenty- 
four  hours  Uom  the  return  of 


the  ver4 i^^l.     Reach   vsv   Hall^ 

I  2,  One  of  the  exhibits  being  mif- 
laid  when  the  caufe  is  commit- 
ted to  the  jury,  is  not  fuffieient 
matter  in  arreft,  if  neither  par- 
ty at  the  time  move  to  have  the 
caufe  ftaysd.  S'vjan  vs.  Bugler ^ 
276.' 

13.  The  fame  degree  of  relation  ■ 
fh-ip  between  a  juror  and    the 
party  ihterefted  in   the  fuit,  as         v. 
would,    by   l^atute,    exclude   a 
Judge,  from  fitting  in  a  caufe, 

is    fuffieient    caufe    of    arrell. 
Wi)odbridgeys,  Rayrnsnd,  279. 

14.  Judgement  arrefted  becaufe 
the  court  had  no  jurifdidion. 
Moult rop  vs.  Beunet,   351. 

A  S  S  A  U  L  T,  ff  cret. 
iftwoperfons  alTaull  another,  5«> 
witnefs  being  prefent  both  may 
be  joined  in  the  complaint,  for 
a  fecret  affault.  N<frihroj>.vs» 
Bvujh,  108. 

ASSETS. 
Vide  Pleading, .  Not.  35. 

ASSIGNMENT. 
Vide  Foreign  Attachment,  No.  i. 

ASSIGNOR   AND  ASSIGNEE. 
I.  The  affignee  of  a  note  can  have 
n6  right   of  adion  agaiuiV-  the 
affignor',    unlefs  a  recovery   on 
the  note  is  prevented  ;   bec-aufe 
nothing  is  due,  or  that^the  pro- 
miifor  was  infoivent  at  the  time 
of   the  affignment ;  or  by  (ome 
ad  of  the  affignor,  operating  as 
a  dilcharge  ;  arMi  if  the  affignee 
receive   part  <3ji;ths  promiifor, 
by   that   ad    he  accepts  him  as      4 
payor  for  the  whole.     Henjhavii 
vs.  Co^,  §0. 
2.  The  Mfignee  cf  a   bankrupt  in 
the  flate  of  New-York,  allowed 
to  maintain  an   adion  nere,  in 
his  own-  name>  i^i  the  recovery 


A  TABLE  OF  THE  PRINCIPAL  MATTERS- 


of  re^I  eftate  afligoed   to  him. 
Wtckham  vs.  py'at erntdn ^  273. 

ASSUMPSIT. 

S.  A.  promifes  to  pay  the  debt  of 
B.  in  cafe  C.  will  forbear  to  fue 
him\  and  it  cannot  be  obtained 
ofB.  In  that  cafe,  the  abilicy 
of  B.  to  pay  the  debt,  is  wholly 
at  the  rifque  of  A.  Barnard 
vs.  Norton,    »94. 

i.  Where  one  promifea  to  pay  the 
debt  of  another  in  cafe  of  fai- 
lure, if  the  creditor  afterwards 
grants  forbearance  to  the  debt- 
or, it  exonerates  the  promiie. 
Deming  v^..  Norton^   397' 

Vide  Fi^auds  andjiatuieof  Frauds, 
t:ici.  3.— AdUon,  No.  6 — lo. 

ATTACHMENT. 

I.  Goods  are  taken  by  attachment, 
and  delivered  to  B.  who  pro- 
mifes to  re-deliver  them  on  de- 
mand ;  if  they  be  not  demand- 
ed within  fixty  days  after  £nal 
judgement  in  the  adtlon  on 
whi^ch  they  are  attached,  B. 
may  reftore  them  to  the  origi 
jial  owner,  and  fhall  not  be  li- 
Jibie  on  his  promife  to  the  offi- 
cer.    Euel  vs.  Metcalft  40.        ^ 

2»  A.  attaches  the  land  of  B.  and 
on  the  feventh  day  after  the  of- 
iicer  leaves  a  copy  with  the 
town-clerk,  but^does  not  atteft 
ir  to  be  a  true  mie.  It  alfo  va- 
ried in^  the  defcription  of  the 
land,  from  the  rerurn  on  the 
original  writ.  On  the  iixth  day 
after  the  land  was  attached,  and 
before  the  copy  left  with  the 
town-cleik,  C.  knowing  of  the 
attachment,  purchafes  the  land 
of  B.  and  receives  a  deed  of 
barg.ain  and  fale.  Adjudged 
that  A.  had  fuch  a  lien  on  the 
land  as  to  give  him  title,  after 
judgement  and  execution,  not 
witnltanding  the  deed  to  C. 
Csoiej  vs.  Sanford,  103. 


AVERMENT. 

1.  Averments  not  neceffary  where 
words,  by  being  taken  in  con- 
nection with  the  fubjed  matter  to 
which  they  are  related,  may  be 
underftood.  As  thefe  words  in 
a  promifibry  note,  "  ufe  till 
•*  paid»'*  obvioufly  mean  inte- 
reft  till  paid,  and  no  fpecial 
averment  is  necellary.  M-CUU 
Ian  Y%.  Morris,  145. 

2.  Averment  of  notice  is  not  ne- 
ceffary in  a  declaration,  where 
the  defendant  has  undertaken; 
abfolutely,  and  without  condi- 
tion ;  for  if  any  matter  refls  in 
the  knowledge  of  the  plaintiff 
alone,  the  defendant  may  apply 
for  information,  if  wanted,  and 
avail  himfelf  of  a  denial^,  by 
pleading  fpeeially.  Buikley\s. 
Elder  km,  188.  '  ^ 

3.  Averments  contrary  to  the  re- 
cord inadmiflible.      154. 

AUCTION. 

Vide  Frauds  and fiatute^ifVx2L.\!,^%^ 
No.  z.  - 

AUDITA    QUERELA. 
Audita  querela  will  lie  as  well  af- 
ter the  levy  of  an  execution   is 
begun,    as  before.     Lot4:>rop  vs. 
Banneti  lia/l 

AUDITORS, 

1.  It  is  peculiarly  the  province  of 
aiKiitors,  as  of  juries,  to  weigh 
evidence  and  determine  facts  ; 
and  there  is  to  be  no  enquiry 
after  them.      Parker  vs.  A--very, 

353- 

2.  They  are  bound  to  take  the  law 
for  (heir  rule,  and  their  award 
may  be  fet  afide,  if  it  appears 
from  the  face  of  their  pioeeed- 
ings,  or  upon  enquiry  of  ihcm 
in  court,  that  they  have  made 
out  their  award  upon  fuch  in- 
ferences  from   fadts   as  che  law 

-  vviH  net  warrant,  or  have  cltai- 


A  TABLE  OF  THE  PRINCIPAL  MATTERS, 


ly  mrftook,  with  regard  to  the 
admilfion  of  evidence.     Ibid* 

353- 
Vide  Account,  No.  2. 

AUTHORITY. 

1.  How  far  the  difcharge  to  an  ex- 
ecution by  an  adnniiniilratrix, 
which  was  in  the  hands  of  the 
inteftate,  as  attorney,  may  be 
faid  to  be  auihorifed.  Kellogg 
vs.  JViliiams,  316. 

2.  If  the  promiifee  endorfes  his 
name  to  a  blank  on  the  back,  of 
i  note,  it  is,  according  to  the 
nature  of  the  tranfadion,  and 
the  courfe  of  bufinei's,  an  autho- 
rity to  the  holder  to  write  over 
ft  a  power  of  attorney,  or  an  af- 
iignment  with  warranty,  at  his 
election;  and  the  cndorfer  is 
eftopped  to  fay  the  contrary. 
Hungerford  vs .  Thom/on,  393 . 

AWARD. 

I,  A  parent  m^ay  fubmit  to  arbi- 
tration, a  trefpafs  committed 
upon  his  infant  child  ;  and  it 
fhall  not  vitiate  the  award,  thar 
the  damages  awarded  are  blend- 
ed  with  other  damages  belong 
ing  wholly  to  the  parent.  Bsebe 
vs.  Traffordt  215. 

2i  The  merits  of  an  award  of  ar- 
bitrators, appointed  by  fubmif 
fion  and  rule  of  court,  is  not  to 
be  examined  into,  upon  the 
ground  of  their  having  raiftaken 
their  evidence  and  plain  prin- 
ciples of  law.  Parker  vs.  Ave- 
ry.   353. 

3.  The  reafonablenefs  or  unreafon- 
ablenefs  of  an  award,  does  not 
afFeft  its  validity,  fo  that  there 
be  not  mifbehaviour  or  corrup- 
tion in  the  arbitrators.     Ibid, 

B. 

BAIL. 

1.  A  fwjeader  of  the  principal  ia 


court  by  the  bail,  is  to  be  prov* 
cd  only  by  the  record,  and  can- 
not regularly  be  pleaded  as 
matter  in  pais.  Fitch  vs.  Hall^ 
18.    ^ 

2.  Bail  is  liable  in  this  (late,  only 
in  cafe  of  the  principal's  avoids 
ance,  and  a  return  of  f:on  eji  in- 
'ventus  on  the  execution.  F'itch 
vs.  Ldveland,  382. 

3.  That  the  officer  returned  the 
execution  agahnil  the  principal 
before  the  return  day,  cannot 
be  taken  advantage  of  in  a  fuit 
upon  the  bail  bond,  unlefs  t:-? 
bail  can  (how  that  he  was  pre- 
judiced by  it.     Ihi^.  384» 

4.  If  by  the  debtor's  reiiflance', 
the  ofBcer  is  prevented  ffom 
taking  him  in  execution,  the 
bail  is  liable ;  far  it  was  as 
much  his  duty  to  render  the 
body  as  the  oincer's  to  take  k. 
Ibid.  38 j. 

5.  A  contrary  opinion  held,  Ihid. 

385- 

6.  The  appearance  of  the  princi- 
pal, in  order  to  difcharge  the 
bail,  muft  be  by  furrender  in 
courc,  or  having  plead  to  the 
aftion.  Gallup  vs.  DeniHjfi?t, 
434.. 

7.  It  is  not  fuScient,  that  there 
hath  been  a  continuance  of  the 
caufe  ;  for  this  might  be  on 
motion. of  the  bail  to  bring  in 
the  principal,  or  motion  of  the 
principal  to  procure  fpecial  bail. 
Ibtb.  434, 

/OV^Limitation  of  Aftions,  No.  3. 
Sheriff,  No.  4, 

B  A  N.XRU  P  T. 

A  commilfion  of  bankruptcy  in 
England,  does  not  itcure  the 
debtor's  effefts  in  this  country, 
but  they  remain  liable  to  the 
attachment  of  their  creditors, 
as  well  B'ritiih  as  American. 
Tayhr,  ^c,  v..Gearv.  l^c.  i,\'^, 

^/</^  Partnerfhip,  No.  1-^6. 


A  TABLE  OF  THE  PRINCIPAL  MATTERS. 


BASTARD. 
Vidi  Limitation  of  Anions,  No.  3. 

BILL  OF  EXCEPTIONS. 

1,  Rules  refpeding  them.  Hunt' 
ington  vs.  Qhamplin,  \f^. 

2.  A  brll  of  exceptions,  bringing 
up  the  whole  matter  in  contro- 
verfy,  after  trial  upon  the 
general  iffue,  not  admifiibie. 
McDonald  and  others  vs.  Fijher 
and  Baldwin ,339.  Wadpwerth 
V5.  Sanfordy  456. 

BOND. 
s.  Bond  for  profecution  denied  by 
the  court,    becaufe  not   moved 
for  i n  feafon ,  P helps  v s .  Fhelpi , 

344-  ' 

2,  Bond,  conditioned  that  the  obli- 
gor fhould  pay  certain  promif- 
fory  notes,  in  the  hands  of  a 
third  perfon.  The  bond  was 
put  in  fuit  the  next  day,  and 
the  couri  held,  that  the  adion 
did  not  lie  ;  for  that  the  defen- 
dant (hould  be  allowed  a  rea- 
fonable  time  to  perform  the 
condition  before  adion  could 
be  brought.      Hart  vs.   Bull, 

396*.    .     . 
Vide  Limitation,  No.  7.— Sheriff, 

No.  3.— Appeal,  No.  t^-^Z, 

B  O  O  K  -  D  E  B  T. 

1 .  In  an  adtion  of  book-debt,  by 
adminiftrator,  the  original  en- 
tries of  the  deceafed  are  not  ab- 
folutely  neceffary  to  fupport  the 
a&ion  ;  for  they  are  only  evi- 
dential of  a  right  of  recovery, 
which  may  be  fupplied  by  other 
evidence  of  as  great,  or  greater 
weight.  Lanjen/ivorth  vs.  Phelps 

2.  An  article  omited  in  a  former 
feitlement  cannot  be  charged 
on  book.  P under fon  vs.  Shaw, 
150, 

3.  Nor  (hall  the  parties  be  admit- 
ted  to  teftify  in  fupport  of  fuch 
charge.    Ibid.  1^0, 


4.  Adion  0/  book  debt  may  be 
maintained  for  betterments 
made  to  land  by  tenant  at 
win,  at  the  requeft  of  the  lef- 
(or<»     Minor  vs.  Er'vingy  158. 

5.  When  intereft  is  challenged  in 
an  aftion  of  book-debt,  the 
agreement  to  allow  it  ought  t© 
be  proved  by  other  evidence 
than  the  oath  of  the  party, 
Phenix  vs.  Pr indie,  209. 

6.  So  oaght  any  fpecial  price,  or 
(node  of  payment  agreed  on  1 
for  the  teftimony  of  the  party 
regularly  goes  no  farther  than 
to  the  quantity,  quality,  and 
delivery  of  the  articles  charged e 
Ibid.  209. 

7.  An  article  delivered  on  fpecial 
agreement,  not  a  proper  fub« 
jed  of  book- debt.  Peck  ys.. 
Jones,  289. 

Fide  Interelt,  No.  4.-— Appeal^ 
No.  2 — 5. 

CERTIFICATE. 

^/V^  Abatement,  No.  3.— Ap- 
peal, No.  3. 

CHALLENGE, 
Vide  Arrefl  of  Judgement. 

CONDI  TION. 

1.  At  what  time  the  failure  to  per- 
form a  condition  may  be  faid 
to  take  place.  Randal  vs.  Tork^ 
314.. 

2.  A  written  agreement  refpe£ling 
a  note,  entered  into  at  the  time 
the  note  is  given,  though  it  be 
not  annexed,  is  to  be  consider- 
ed iti  nature  of  a  condition. 
Fellows  V5.  Carpenter,  ^tA^* 

Vide  Bond,  No.  z. 

CONFESSION. 

Vide  Evidence,  No.  i  .—Judge- 
ment by  Confeflion,    No.  1—2, 

CONFISCATION. 
A  perfon,  whofe  property  was  con- 


A  TABLE  OF  THE  PEJ:Nt:iPAL  MATTERS, 


fifcated  for  the  benefit  of  the 
ftate,  is  ftill  liable  to  the  fub- 
je*^s  ot  the  fame  ftate  for  his 
antecedent  contrafts.  Marks 
vs.  Johnlon,  228.  — Alfo,.  iff^^/^- 
man  vs.  Tomlinlln,  291. 

CONTEMPT. 

If  the  files  of  court  are  withheld 
after  a  rule  to  bring  them  in, 
3t  is  a  contempt.  Barker  vs. 
Wilfordy  234. 

C  ON  TRACT. 

Contrai^ls  are  to  be  governed  by 
the   laws   and   cuftoms   of  the 
place   where    they    are    made,    j 
K'Jfam  vs.  Bur  rail,  338. 

Vide  Guardian,  No.  3.--A£lion, 
No.  3— 9. 

COSTS. 

1 .  On  final  judgement  in  favour  of 
a  plaintiff,  after  abatement  and 
amendment,  the  plaintiff  fhall 
recover  aa  coft^  antecedent  to 
the  amendment,  excepting  writ, 

'  duty,  and  officers*  fees.  Mills 
vs.  Bifmpi  89.      ' 

2.  Coft  is  not  to  be  allewed  either 
party,  when  judgement  is  ar- 
refted  for  the  infuffieiejscy  of  the 
declaration.     Hanvley  vs.  CaJ- 

3.  Upon  a  ^petition  for  .the  fore- 
clofure  of  a  mortgage,  coft  may 
be  taxed  for,  the  petitioner, 
which   becomes   a  further  iien 

/  upon  the  land.  Bradley  vs. 
Hitchcock,  231. 

4.  Coft  may  be  taxed  out  of  court. 
Williams  vs.  Whit  more,  251. 

5.  Coft  cannot  be  entered  for,  the 
fecond  term  after  an  adion  is 
withdrawn.  Richards  vs^  ^^ay, 
269. 

6.  In  a  criminal  profecution,  where 
the  evidence  is  not  fufficient  to 
hold  the  accufed  perfon  to  a 
trial  before  a  court  of  compe- 


tent jurifdiftion,  he  is  not  lia* 
ble  to  pay  coft.     362. 
Fide  Errors,  No.  2. — Jadgement 
by  Confeffion,  No.  2. 

COVENANT^ 
A  minifter  covenanted  with  the 
people  of  his  parilh^  that  he 
would  ferve  th^minxhat  capa- 
city during  his  natural  life,  and 
conform  to  the  fyftem  of  church 
government  then  eftablifli^d  ; 
and  tiot  vary  therefrom  without 
a  majority  of  the  church  and 
fociety,  under  certain  penalties. 
The  breach  affigned  was,  ""that 
*'  the  defendant  convened  the 
**  church  without  the  knowledge 
f?,  of  the  fociety,  and  by  his  in- 
'f  fiuence,  a  majority  of  the 
*'  church,  together  with  him- 
*•  felf,  paiTed  a  number  of  votes, 
**  in,dire(Sl  oppofition  to  the 
'^  plan  of  church  government 
"  then  eilablilhed  ;  and  with- 
**  out  fhe  confent  of  the  fociety 
•*  prafticed  thereupon."  And 
on  demurrer,  the  breach  affign- 
ed wasrheld  to  be  infufficient ;  for 
^  that  the  defendant  did  not  Hi - 
pulate  for  the  conduft  of  the 
church,  and  no  condudl  of  the 
church  (of  which  himfelf  was 
only  one)  could  be  imputed  to 
him  as  a  fole  tranfadion.  South" 
Farms  vs.  Beckivith,  97. 
^;</^  Damages,  No.  i. 

COUNTERFEITING. 
Aiding  in  the  a6l  of  counterfeit- 
ing, is  within  both  the  letter 
and  reafon  of  the  ftatute,  as 
much  as  afliftingin  making  the 
implements.       The    Stale    vs. 

StUtJOtly       52. 

Vide  Limitation  of  Adlions,  No.  i. 

COUNTY. 

Vide  Goals,  No.  i — 2 — 3— 4* 


A  TABLE  0?  THE  PRINCIPAL  MA TTERg^ 


D. 

DAMAGES, 

1 .  In  an  adion  on  the  covenant  of 
feifin,  contained  in  a  deed  of 
bargain  and  fale,  the  rule  of 
damages  is  the  confidcration  of 

"  the  deed  ;  but  on  the  covenant 
of  w'arranty,  the  value  of  the 
land  at  the  time  of -evidion. 
Horsfordvi.  Wright ^  3. 

2.  What  fhall  be  faid  to  be  an  al- 
legation of  fpecial  damage  in 
an  adion  for  Handerous  words. 
BoJI^jickvs.  'Nickel fan  J   65. 

■F/^f  Evidjence,  No.  3. 

DEBT. 

In  cafe  of  a  joint  and  feveral  debt, 
a  difcharge  to  one  of  the  debt- 
ors for  his  portion  of  the'-  debt, 
is  only  a  difcharge  of  fuch  part 
as  is  defcribed,  and  the  perfon 
difcharged,  as  well  as  the  other 
debtors,  are  ftill  liable  for  the 
remainder.  Rogers  \s»  Hemfied, 

44- 

DEBT  oti  JUDGEMENT. 

1.  Principles  refpeding this adion. 
Stern  vs.  Spalding ^  177. 

2.  It  hiay  be  brought  where  there 
is  a  former  judgement  unfatis- 
^ed,  though  return  of  non  ejl  in- 
*ventus  hath  not  been  made. 
Ibid.  177. 

3.  Not  fuftainable  upon  a  judge- 
ment, where  the  court  had  no 
legal  jurifdidion.  Kibbee  vs. 
Kihbety  i?.6. 

4.  Debt  on  judgement,  by  writ  of 
foreign  attachment,  may  be 
fullained,  to  fecure  the  efFeds 
of  an  abfconding  debtor  ;  but 
the  declaration  muH  fet  forth 
that  fatisfadion  of  the  former 
judgement  could  not  be  obtain- 
ed,    Waldo  vs.  Mumford,  311. 

DEBTOR. 

"l.  When  a  isoor  debtor  i§  aiTjgned 


in  fervice,  in  difcharge  of  his 
debt,  the  affignment  mull  limit 
the  fervice  to  the  perfon  of  the 
mafter  named,  and  not  extend 
to  his  heirs  and  affigns.  Hunt" 
ington  vs.  Jones t  33. 
2.  When  debtors  are  aiTigned  In 
fervice,  on  judgement  rendered 
by  default,  the  court  aligning 
fuch  debtor  in  fervice  ought  to 
be  careful  to  examine  the  me- 
rits of  the  debt.    Ibid.  34. 

D  E  C  L  AR  ATI  ON. 

Vide  Pleading.  Averment,  No.  2* 

D  E  CREE. 
A  decree  that  a  note  (hall  be  void^ 
is  good.    Lanktonv^.  Scott,  359, 
^;V^  Petition  in  Equity ^  N®.  2. 

D  E  EDS. 

1 .  In  a  d.cQd  of  purchafe,  the  gran*. 
tor  has  no  right  to  dired  the 
ufe.     Huntington  \5,  Carpenters 

A7'-  ■       , 

2.  Deeds  may  be  delivered  to  ar- 
bitrators for  their  difpofal,  as 
they  (hall  award  the  title  j  and 
upon  publiOiing  the  award,  the 
deed  becomes  abfolute  to  the 
perfon  in  whofe  favour  it  is 
made.      Peck  vs.  Geodnvin,  64.0 

3.  A  deed  received  by  a  Regifter 
to  be  recorded,  and  an  entry  of 
that  kind  made  upon  it,  Ihall 
fecure  a  title  to  the  grantee^ 
from  the  day  it  was  fo  received^ 
without  any  reference  to  the 
time  in  which  the  deed  is  re- 
corded at  length.  McDonald 
vs.  Leachi'^z* 

DEMURRER. 
F/V^  Pleading.— Abatement,  No* 

7- 

DEMURRER  to  EVlDENGIio 
Parole  evidence  cannot  be  demur- 
red to  before  a   Juftice  of  the 
Peace.    Butkr  vs.  ScGijel,  3520 
11 


A  TABLE  OF  THE  PRINCIPAL  MATTERS. 


DEPOSITION. 

l.Depofuiops  are  not  admiflible 
when  taken  out  of  this  ftate,  if 
taken  within  twenty  miles  of 
the  adverfe  party,  bis  known 
agent  or  attorney,  and  notice 
be  not.  given.  "  Whitittg  vs. 
ye^wely  I. 

2.  When  numbers  are  joined  in  a 
fait,,  depofi lions  cannot  be  im 
proved  again il  fuch  of  them  as 
arc  not  notified  of  the  taking  ; 
but  each  peifon  mult  have  no- 
tice, if  within  the  diilance'  the 
flatute  prefcribes.  Clap  vs. 
Lockvjood,  lOO. 

3.  The  deporuion  of  a  witnefs  was 
admitted  vvho  lived  within  twen- 
ty miles  of  the  adverfe  party, 
but  when  fworn  was  abfent  from 
home,  and  more  than  twenty 
miles  diftant,    and  the  adverfe 

•     party  not    prefent  or   notified. 
'   Nichols  Vs,  HiliyeriZjo. — Job^i' 
fon  vs.   Focty  283. 

4.  Depofiticns  ta^en   out  of  this 
-   flate  are  to  be  taxed  at  6s.   ?,nd 

thofe  taken- within  the  itate  at 
4s.     Barker  vs.  Wilffirdy  234. 

DEPUTY. 
Vide  Sheriff,  No.  3—5. 

DEVISE. 

1.  A.  devifes  his  ellate  to  his  fon 
Noah^  and  his  male  heirs  for- 
ever ;  this  is  an  abfolute  eftate 
an    the   fons   of    the     devifee. 

'  Chappel'\s\  Breivjier,  175. — 
Same  point  refoived.  Welles  and 
Wife  vs.  Olcoit^  3x3. 

2.  A  devife  by  a  feme  covert  to 
her  hu(band,  is  void.  Adams 
vs.  iTf^^,  i95— 43S« 

Vide  Legacy. 

DISCONTINUANCE. 

1.  A  cafe  being  publicly  called  on 
the  firft  day  of  the  term,  and  no 
appearance  of  either  party,  it  is 
difcontinued,  and  cannot  be  af- 


terward revived  but  by  confent 
of  bo;h  .  parties.  Babcock  vs. 
Janes y  36 1. 
2  An  adion  being  withdrawn, 
and  no  entry  for  coft  till  the 
fecond  term  it  is  difcontinued, 
and  entry  cannot  thehbemade. 
Richards  vs.  Way,  269.' 

DISTRIBUTION. 

1.  Diftributiun  of  an  eftate  does 
rot  exonerate  the  adminiftrator 
from  the  payment  of  debts,  not 
before  exhibited  and  .  paid. 
Phelps  vs.  Sotvany  429, 

2.  Though  if  a  time  be  limiteH 
by  order  of  probate  for  the 
claims  to  be  exhibited,  this  will 
bar  all  other  demands.  Ihid^ 
429. 

DIVORCE. 

In  a  petition  for  divorce,  on  the 
ground  jftf  wilful  defertion,  the 
perfonal  attendance  of  the  peti- 
tioner was  difpenfed  with,  un- 
der peculiar  circuaiftances%— 
Scottvs*  Scott,  270. 

DOWER. 

Tenants  in  dower  are  not,  by  the 
ftatute,  compellable  to  make 
repair,  unlefs  the  dower  be  af- 
figned  in  the  manner  the  ftatutc 
prefcribes.  Beers  vs.  Strongs  19. 


E. 


EJECTMENT. 

1.  In  ejeftment,  it  is  no  bar  that 
the  title  of  the  land  demanded 
was  determined  on  a  plea  of  ti- 
tle in  an  aftion  of  trefpafs  be- 
tween the  fame  parties.  Comes 
vs.  Prior,  395. 

2.  If  more  lands  are  demanded 
than  the  declaration  fets  forth, 
it  is  neverthelefs  good  for  what 
is  fet  forth.  Apthorp  vs.  Bafkus, 
415. 


^^TABLE  OF  THE  PRINCIPAL. MATTERS. 


ECLUITY. 
Relief  granted  in  equity  againft  a 
miilake    in    the   draught   of  a 
bond.     Chapman  vsaAllen,  /^oo, 

ERROR. 

J.  Judgement  was  rendersdagainfl 
minors  and  adults,  as  joint  tref- 
paffers ;  the  mincsrs  made  no 
defence,  as  they  had  no  guar- 
dians, and  noae^were  appointed 
hy  the  court.  On  writ  of  er-. 
ror,  the  judgement  was  re^erf- 
ed  as  to  the  mioors,  a.ad  affirrn- 
cd  as  to  the  adults.  Wtlford 
and  others  vs.  Gr-anf,  li^.,.., 

2.  So  where  judgement  is  errone- 
ous, as  to  cofts  only,  it  ir^y  be 
jre^erfed,  as  to^hem^  aisd  (land 
gGsod  as  to  the  debt  or  damage. 
I&id.  u6.  -       ^ 

3.  Where  lufHcient  errors  in  law 
are  aflignedj  together  with  er 
rors  in  fad,  not  properly  aiHgn- 
able  in  error,  it  will  not  vitiace 
tke-writ.  Woofier  and 'Others 
vs.  Faffonsy  30^ 

4.  Judgenient  not  reverfewd  for  in- 
formality in  the  entry  of  the 
record,  where  fubftantial  juftice 
appeared  to-  be  done.  Clark 
vs.  Mo/es,  144, 

5.  Any  thing  affigned  for  error 
contrary  to  the  record,  is  inad- 
mifiible.     lftght\sMott,i!^^. 

6.  Two  judgements,  rendered  on 
fiiits  of  a  like  kind,  and  de- 
pending on  fimilar  principles, 
may  be  joined  in  the  fame  writ 
of  error.   Ponversvs.  Lillie^  160, 

Vide  New  Trial,  No.  2. 

EVIDENCE. 
1.  The  confeffion  of  a  party  in  in- 

tereft,  if  not  joined  in  the  fuit.. 

may  not  be  given  in  evidence. 

Woodrvff  vs.  Whittlefey,  6?.. — 

Hamlin  vs.  Fitch,   174. — 'Storrs 

vs.  Wetmore,  203. 
2>  Motion  to  enquire  the  charac- 
.    ter  of  the  panics  to  a  fraudu- 

L  U 


lent  conveyance,  over- ruled  hf 
the  court.     62. 

3.  In  an  action  for  flanderous 
v/ords,  evidence  of  fpecial.da- 
mage  Ihall  not  be  given,  unlefs 
il  be  alledged  in  the  declara- 
tion. Boji^ick  vs.  Nickel/on,  65. 

4.  Oa  an  indidment  for  adultery, 
the  evidence  was,  that  G.  was 
feen  naked  in  bed  with  the  wife 
of  R^.and  this  was  held  fuffici- 
ent  after  verditl  ;  for  the  jury 
are  the  proper  judges  of  the 
weight  of  evidence  on  the  whole 
circumllances  of  the  cafe.  State 
vs.  Green t  87. 

5.  Evidence  of  a  fa^  not  charged 
in  the  indidment,  but  which  is 
a  leading  circumfiance  to  the 
crime,  may  be  admitted.  Ibidl 
89. 

6.  Parole  evidence  Kotadmiilble, 
to  (how  the  extent  or  legal  ope- 
ration of  a  writing,   or  to  con- 

,   tradid-it.     Carter  vs.  Bellamy g 

Tide  Approver.  Auditors.  Plead- 
ing, No.  13. 

EXECUTION. 
Execution  from  a  Juftice  of  the 
Peace  may  be  direaed  through 
the  ftate,  and  the  debtor,  or  his 
property,  is  liable  to  be  taken 
where  found.  Gilbert  vs.  Kider, 
182. 


FALSE  IMPRfSONMENT. 
Vtde  Aaion,  No.  4. 

FEME- COVERT. 

1.  A  feme-covert  can-not  devife 
her  eftate  by  will  to  her  huf- 
band.  Adams  vs.  Kellvgg,  19^. 
43^- 

2.  The  llaryte  of  wills  in  tliis  fiate 
leaves  feme- coverts  under  the 
dilabiluies  of  the  common  law. 
Ibid,  196. 


ATABLE  OF  THE  PRINCIPAL  MATTERS^. 


»»  Feme  coverts  are  not  within 
the  faving  of  the  llarute  grant- 
ing appeal  from  courts  of  pro- 
bate,    Merrtli  vs.  Adumii^i^'j. 

FOREIGN  ATTACHMENT. 

3.  After  a  foreign  attachment  is 
once  ferved,  the  original  owner 
can  make  no  transfer  ;  and  if  it 
be  a  debt  due,  an  affignment 
from  him  fhall  not  affed  it. 
Coitvs.  Bull,  149'  r 

3.  If  a  procefs  by  foreign  attach- 
ment be  not  legally  ferved  on 
the  original  debtor,  the  garni- 
Ihee  fliall  take  no  advantage  of 
it  on  the/czre/acias  againll  him. 
Minor  vs.  Coo^t  157. 

^,One  who  is  indebted  to  an  ab- 
fconding  debtor,  being  ferved 
with  a  foreign  attachment,  can- 
not be  admitted  to  defend  in 
the  adion,  or  to  appear  and 
prevent  a  continuance,  without 
exprefs  authority  from  the  de- 
fendant.     Strong   vs.    Barlon.Vy 

37^' 

4,  ill  an  adlion  of  debt  on  jadge- 
jnent,  by  foreign  attachment, 
it  is  not  a  fufficient  anfwer,  that 
cftate  was  put  into  the  hands  of 
the  creditor,  on  which  he  might 
have  levied  his  former  executi- 
on. Backus  and  others  \z.  Den- 
nifon,  421. 

Vide  Debt  on  Judgement,   No.  4. 

FRAUDS, 

AKD 

STATUTE  OF   FRAUDS. 

1.  What  circumftances  amount  to 
evidence  of  a  fraudulent  con- 
traft.    Woodruff  vs.  Whittlejey, 

2.  An  advertifement  that  lands 
are  to  be  fold  at  public  au6lion, 
with  termsof  fale,  &c  is  a  fuf- 
£cient  memorandum  in  writing 
within  the  ftatute  of  frauds,  to 
hold  the  vendor  to  a  perfor- 


mance ofhis  agreement.    Hoh-* 
by  vs.  Finch,  14, 

3.  Lands  fold  and  conveyed  by' 
deed,  defcribing  the  met«s, 
bounds,  lines,  and  fuppofed 
quantity  ;  a  verbal  prOmife  at 
the  fame  time  to  pay  the  gran-« 
tee  all  that  fhould  fall  (hort  era 
menfuration,  adjudged  to  be 
within  the  ftatute  of  frauds  and 
perjuries.  Bradley  vs.  Blodgef, 
22. 

4.  A  parole  agreement,  concern- 
ing lands,  being  executed'  on 
one  part,  is  not  within  the  fia- 
tute  of  frauds.  Chapman  vs. 
Allen,  400. 

5.  Adion  for  a  fraud,  in  undertak- 
ing to  {t\\  lands  in  Vermont, 
when  the  defendant  had  none* 
Marjh  vs.  Steele,  454. 


GOALS. 

1.  If  a  goal  is  left  acccffible  to 
perfons  without,  and  is  of  a 
conftrudion  and  materials,  that 
by  the  fecret  ufe  of  implements 
it  can  be  broken,  the  county  is 
liable.  Clark  vs.  the  county  of 
Litchfield,  323. 

2.  The  county,  who  builds  and  rew 
pairs,  is  refponfible  for  thefuffi- 
ciency  of  the  goal,  and  the  fhe- 
rif  for  the  cuftody  ;  and  one  or 
the  other  muft  anfwer  for  every 
efcape,  unlefs  it  happen  by  fire, 
public  enemies,  or  the  provi- 
dence of  God.    /^/V.  323. 

3.  If  thofe  who  aid  a  pri loner  to 
efcape  from  goal  are  not  of  fuf- 
ficient ability  to  pay  the  debt, 
the  creditor  may  purfue  his  re- 
medy againft  the  county.   Jbid» 

324- 

4.  It  doth  not  help  the  county,  that 
the  prifoner  was  taken  on  frefti 
purfuit.     Jhid.  324 

5.  That  the  debtor  was  poor,  and 
unable  to  pay  the  debt,  i*' no 


ARABLE  OF  THE  PRINCIPAL  MATTERS, 


reafon  for  abating  the  damages. 
J  hid.  325. 

GR^A  NT.  • 
Tlie  legiflature  cannot  legally  do 
any  a6l  that  fhall  operate  to  li- 
mit or  curtail  their  Own  grant. 
Sjimjhury  Caje,  447. ' 

G  U  A  R  D  I  A  N. 

!•  A  guardian  to  a  raitior,  ap- 
pointed by  the  court  of  pro- 
bate, without  limitation  of  time, 
while  the  minor  is  not  of  fufS- 
cient  age,  lawfully  to  choofe  for 
himfelf,  will  hold  till  he  arrive 
at  full  age,  unlefs  the  guardian 
be  removed  from  office,  or  ano- 
ther is  chofen,  to  the  acceptance 
of  the  court.  May  and  Wife 
vs.  Webb,  286. 

2.  A  contrary  opinion  held,  Webb 
vs.  May^'  252.  • 

3,  A  contract  made  by  a  minor, 
under  the  power  of  a  guardian, 
and  by  bis  confent,  is  binding 
upon  him*  >  287. 

Vide  Infancy,  No.  i, 

H. 
H  A'BE-AS  CORP^U^.  ' 
A  "^x'w.pi  habeas  corpus  ordered  to 
liTue;  to  bring  a  debtor  from 
goal,  that  he  might  give  tefti- 
mony .  Chapman  vs.  Welies,  i^yi 


I. 


INFANCY. 

1.  Minors  are  preiumed  wanting 
in  difcretion  to  manage  their 
own  caufes,  or  to  appoint  and 
inftrud  attornies ;  and  if  they 
have  no  guardians  and  none  be 
appointed  by  the  court,  and 
judgement  is  rendered  againll 
them  by  default,  it  is  erroneous. 
Wtlford  vs.  Grant,    1 16. 

2.  It  is  the  duty  of  the  plaintiff  to 
inform  the  caurt  of  the  minori- 
ty of  the  defendant,   bcfoxe  he 


take  judgement,    either  by  de- 
fault or  otherv/ife.     Ibid,   116. 

INFERIOR    COURTS. 

Vide  Jurifdidion,  No.  3—4—5, 

INTEREST. 

1.  When  interell  is  challenged  in. 
an  adion  of  book-debt,  it  ought 
to  be  declared  for  as  parcel  of 
the  debt,  that  the  defendant 
may  have  notice  thereof  oti 
oyer.      Thomjon  vs.  Wales,    36. 

2.  After  the  average  is  Hfuck  on 
an  infolvent  efcate,  no  future 
intereii  can  arife  on  fuch  ave- 
rage, as  relative  to  the  Cilatej 
but  if  the  adminiftrator  fo  con- 
dud  as- to  fabjed  himfelf  per* 
fonally  to  the  payment  of  inte- 
red,  the  adion  muilbe  brought 
accordingly.  Fitch  vs.  Uunt-- 
ingtotiy  38. 

3.  Rule  for  computing  Intereft  oni 
obligations,  where  payments 
have  been  made.  49.  — Ex- 
planation of  the  rule.     335. 

4.  Intereit  may  be  recovered  in  an 
adion  of  book- debt,  for  which 
there  is  either  an  exprefs  or 
implied  contrad.  Fhenix-  vsa 
Friiid/egZojo  '  ' 

jOIND-ER  i!^   ACTION. 

1.  Two  or  more  cannot  join  in  an 
adion  for  a  vexatious  fuit,    be- 

j       caufe  the  injury  is  feparate  and 
^       perfonal.      'AinJ^orth  vs.  Aihn,, 

2.  Two  matters  of  the  fame  nature 
and  kind  may  be  joined  in  the 
fame  fait.  Fo^wers  vs.  LUlie, 
160. 

JUDGEMENT 

BY 

CONFESSION. 

I .  A  judgement  rendered  by  con- 
Jeffion,  ought  to  exprefs  the  par- 
ticular debt  or  duty  it  is  for, 
that  it  may  be  pleadable  in  bar 


A  TABLE  OP  THE  PRINCIPAL  MATTERS. 


of  a  future  demand  for  the  fame 
thing.  Wight  \s.  MoU,  1 52. 
2.  Where  a  Juftice  of  the  Peace 
takes  a  confeffion  for  a  debt 
of  20I.  he  cannot  render  judge- 
ment for  more  coft  than  his  own 
fees,  unlels  it  be  upon  an  ante- 
cedent procefs;  all  which  muft 
appear  of  record.  Welles  vs. 
Fowler,  236. 

JURISDICTION. 

1.  The  fuperior  court  have  jurif- 
didion  of  the  crimes  of  perjury 
and  forgery.  The  State  vs. 
Lock'Tvoody  106. 

2.  And  it  is  the  fame  when  brought 
qui  tarn.  Parks  vs.  Morgan,  159. 

3.  In  an  aftion  for  falfe  imprifon- 
ment,  the  defendant  julHfies, 
under  the  authority  of  an  infe- 
rior court.  Replication,  that 
the  court  had  no  jurifdidion,  ad- 
judged infufficient ;  becaufethe 
want  of  jurifdidion  does  not  ap- 
pear upon  the  face  of  the  pro- 
cefs,  and  it  is  too  late  to  {hew 
it  by  matter  dehors  the  record. 
Woojier  vs.  Farfons^  I  ID. 

4.  If  the  defendant  will  fuifer  the 
procefs  to  go  on,  and  not  plead 
the  matter  to  the  jurifdidion  in 
abatement,  he  is  fuppoled  to 
have  waved  it,  and  cannot  af- 
terwards draw  it  inquellion,  by 
an  adion  for  falfe  imprifon- 
ment.     Ihid.  11 1. 

K.  In  all  courts  of  limited  and  in- 
ferior jurifdidion,  it  ought  to 
be  exprefsly  averred  in  the  de- 
claration, that  the  caufe  of  ac- 
tion arofe  v/ithin  the  jurifdic- 
tion  of  the  court.  Woojier  and 
ethers  vs.  Parfons,    29. 

Vtds  Juftice  of  the  Peace,  No.  3. 
Debt  on  Judgement,  No.  3. 

JURORS  AND  JURY. 
J.  The  jury  may  be  returned  to  a 
fecond  confideration,    in  an  ac- 
tion of  debt  upon  a  penai  ftatute^ 


it  being  a  civil  adion*    Pettis 
vs.  Dixon,  179. 

2.  To  fcrve  as  a  juror  is  not  to  ex- 
ecute an  office,  within  the  mean- 
ing of  the  ftatute  requiring  aa 
oath  of  fidelity.  Gilbert  vs. 
Rider,   184. 

3.  When  a  jury  have  given  ia'a 
verdid  upon  oath,  and  aifented 
to  it  in  court,  thfey  cannot  af- 
terwards be  received  to  fay  they 
did  not  agree  to  it.  Apthorf 
vs.  Backus,  416. 

4.  An  opinion  formed  and  de- 
clared upon  a  general  principle 
of  law,  does  not  disqualify  a 
juror  to  ftt  in  a  caufe,  in  which 
that  principle  applies.  Pettis 
vs.  Warren,  427; 

Vide  Arreft  of  Judgement. 

JUSTICE  OF  THE  PEACE. 

1.  JuRices  of  the  Peace  ought  to 
be  cautious  of  declaring  extra- 
judicial opinions.  Wilfon,  ijfr* 
vs.  Hinkley,  ^c.   201. 

2.  But  a  Juftice  having  manifeft- 
cd  his  opinion  on  a  queftion  of 
law,  does  not  legally  difqualjfjr 
him  from  judging  a  caufe. in 
which  that  quellion  comes  up. 
Ibid.  202. 

3.  Nor  is  it  material  to  his  jurif- 
didion  of  what  defcription  the 
parties  are,  or  what  the  caufe  is, 
if  the  title  of  land  is  not  con- 
cerned, and  the  demand  does 
not  exceed  four  pounds.  Ibid* 
202. 

4.  It  is  the  duty  of  a  Juftice  of  the 
Peace  granting  a  fearch  war- 
rant to  limit  the  fearch  to  fuch 
particular  place  or  places  as  he, 
from  the  circumftances,  fhall 
judge  there  is  reafon  to  fufped. 
Frtjhie  vs .  Butler,   215. 

Fide  New  Trial,  No.  I.— Adion, 
No.  I — 2 — iJ. 

JUSTIFICATION. 
»  I .  In  an  adion  for  falfe  imprifon- 


A  TABLE  OF  THE  PRINCIPAL  MATTERS, 


ment,  the  defendant  juftifies 
under  the  authority  of  an  infe- 
rior court.  Replication,  that 
the  court  had  not  jurifdidion, 
adjudged  infufficient ;  becaufe 
the  wantof  jurifdidlion  does  not 
appear,  upon  the  face  of  the 
procefs,  and  it  is  too  late  to 
fhow  it  by  matter  dehors  the 
record.  Woojier  vs.  Par  fans, i  \o. 
2.  A  warrant  from  an  inferior 
court  would  be  no  j unification, 
if  it  appeared  from  the  face  of 
it  that  the  court  had  not  jurif- 
didion.     /^/V.  no. 

L. 

LEATHER. 

Working  unfealed  leather  into  fad- 
dies  and  hafnefs,  is  held  by 
three  Judges  againfl  two,  not 
to  be  within  the  Ilatute  regu- 
lating tanners.  Church  vs. 
Thorn  font  93. 

L  EG  A  C  Y. 
Lands  fpecifically  devifed  cannot 
ftand  chargeable  with  the  pay- 
ment  of    pecuniary    legacies. 
Cafe  vs.  Ca/e,-2%^, 

LIMITATION  OF  ACTIONS. 

,1.  The  ftatute  of  limitations  ex- 
tends to  offences  which  may  be 
punifhed  by  fine,  or  otherwife, 
at  difcretion  of  the  court  ;  as 
fornication,  riots.  Sec.  and  to 
an  information  at  common  law, 
for  palling  a  counterfeit  note, 
made  in  imitation  of  the  notes 
iifued  by  the.Superintendant  of 
'  Finance.  The  State  vs.  Enos, 
21. 

2.  Limitation  by  court  of  probate 
for  creditors  to  exhibit  their 
claims  againft  an  inteftate  ef- 
tate,  is  not  conclufive,  if  the 
debt    be   under   fach     circum- 

_  fiances,  that  it  could  not  be 
afceruined  within  the  term  li- 


mitedo    Backus  vs.  Clewvelancf, 
$6. 

3.  In  an  action  for  fopport  of  a 
ballard  child,  judgement  being 
rendered  for  quarterly  pay- 
ments, the  ftatuteof  limitaiions 
does  not  operate  in  favour  of 
the  bail  till  a  year  after  the  laft 
payment.  Harris  ami  tuije  vSc 
Thomas y  267. 

4.  AbCence  at  Halifax,  without 
the  jurifdidion  of  the  United 
States,  is  not  beyond  fea,  with- 
in the  intent  of  the  ftatute  of  li- 
mitations. Gujiin  vs.  Brattle^ 
300. 

5.  Nor  does  going  beyond  fea  af- 
ter caufe  of  adion  accrues,  cense 
within  the  faving  of  the  ftatute. 
Ibid.  301. 

6.  Nor  do  the  difabilities  menti- 
oned in  the  provifo  of  the  Ila- 
tute, relate  to  adminiftrators 
which  are  appointed  after  the 
limitation  hath  taken  efFefta 
Ibid.  301. 

7.  Nor  does  the  acknowledgement 
of  the  debt  revive  the  adion, 
and  thereby  fave  a  bond  out  of 
the  (latute.     Ibid.  302. 

8.  A  contrary  opinion  h.Q\^,  Ibid,. 
305- 

LIMITATION  OF  ESTATES* 
An  eftate  cannot  be  limited  fur- 
ther than  to  the  iifue  of  the  do- 
nee, Welles  and  nvife  vs.  O/- 
cott,  1 18.  Chappel  vs.  Breivf- 
ter,  175. 

M. 

MAINTAINANCE 

OF 

PAUPERS. 
A  fon-in-law  is  not  holden  for  the 
fupport   of  his    wife's   parent. 
Mack  vs.  Parfonsy   155. 


MANDAMUS. 
I,  Mandamus    ordeied    to 


iffus? 


A  TABLE  OF  THE  PRINCIPAL  MATtlRlg. 


^gainft  a  town -clerk,   to  record 
a  deed.      Strong* s  Cq/e,  345. 

2.  Rules  concerning  writs  of  inan- 
damus.     /<^/V.   346. 

3.  Method  of  proceeding  upon  the 
return  of  a  mandamus.    /^/V. 

351- 

MORTGAGE. 

1.  A  mortgage  veils  the  grantee 
immediately  with  the  title,  de- 
feafible  upon  the  condition  be- 
ing performed.  Coit  vs.  Fiic^j 
-255. 

2,  Pendency  of  a  fu^it  upon  a  bond 
is  no  bar  to  an  adion  of  eject- 
ment, for  the  recovery  of  lands 
mortgaged  in  fecurity  of  the 
fame  debt.     Ibi4.%s\* 

.'■,N. 

KEW     TRIAL. 

1.  A  new  trial  not  admilTible  be- 
fore a  Juftice  of  the  Peace. 
Page  vs.  Camp,  9. 

2.  A  petition  for  new  trial  is  mat- 
ter .of  difcretion  with  the  court 
to  which  it  is  prefered,  to  grant 

,  or  negative  ;  therefore  error 
cannot  be  predicated  on  fuch 
decifion,  Kiml^allvs.  CaJy,  ^.l. 

3.  A  motion  for  new  trial  made  in 
court — how  cohfidered.  Sijoles 
vs  Stoddard y  163.  Dorr  vs. 
Chapman,  205. 

4.  Rules  refpeaing  new  trials. 
Sumner  yi%,  Lyman iZL\* 

5.  On  a  petition  for  new  trial, 
witneiTes,  which,  by  ufing  due 
diligence,  might  have  been  ob- 
tained at  the  former  trial,  are 
not  admitted  to  tellify.  ^oyce 
vs.  Huntington,  282. 

6.  Nor  .are  witneiTes  admiffible 
.  which  are  not  named  in  the  pe- 
,   tition.    Ihid.  283. 

NOTICE. 
1.  Notice  ought  to  be  given  when 
a  depofition  is  taken  out  of  this 


ftatc,  if  within  twenty  milis  of 
the  adverfe  party,  his  known 
agent  or  attorney.  Whitings^, 
J  em)  ell,'  I . 

2.  DilUndlion/ where  it  is  the  du- 
ty of  the  defendant  to  give  no- 
tice, or  of  the  plaintiff  to  naakc 
demand.  Suffrein  VS.  Fr indie ^ 
112. 

3.  The  want  of  an  averment  of 
noiicc  in  the  declaration,  cured 
by  verdidl.  Church  vs.  Inho' 
bitunts  of  Nor^wichf    142. 

4.  Natice  to  a  confervator,  where 
a  fuit  is  begun,  is<lifferent  from 
original  procefs,  and  is  not  con- 
fined to  the  4ame  number  of 
days  before  court  which  the  law 
diredls  in  that  cafe.  §«ow  vs. 
Antrim,  174. 

5.  Where  a  thing  is  promifedab- 
folutely,  the  promiffee  need  not 
give  notice;  for  if  any  thing 
reils  in  his  knowledge  &loQe> 
neceiTary  for  the  other  to  krwow, 
he  may  apply  for  information, 
and  avail  himfell  of  a  denial, 
by  pleading  fpecially.  Bulkltf 
vs.  Elder  kin  t    188. 

Vide  Depolitions. 

O. 

OFFICE  AND  OFFICER; 

Vide  Jurors  and  Jury,  No.  2. 

ORDER. 

Order  of  court  may  be  obtained 

for  neceflary  papers,     Morlimt 
>,  Cald'well,  56. 

P. 


vs 


PARTITION. 

I.  Partition  of  an  inteftate  eftatc* 
by  agreement,  in  which  dower 
is  apportioned  to  the  widoWf 
does  net  entitle  the  heirs  tothc 
ftatute  remedy  againft  the  te- 
nant in  dower,  to  compel  -tQ* 
.  pairs.     JSeers  vs.  Strang,  t^ 


A'. TABLE  OF  THE  PRINCIPAL  MATTERS; 


2.  A  writ   of  partition  concluded 

in  tbefe  words—*'*  that  the  de- 

■  iendants   refufed    to  make  par- 

•  tition  thereof,  and  prevent  the 
fame  being  done — to  the  plain- 
tiff's dam-age  70I.  and  for  the 
recovery  thereof,  with  coll,  this 
fuitis  brought,  &c."  Adjudged 
iniuiiicient,  as  it  contained  no 
demand  of  partition,     Hanjoley 

..    v^&,  Cajle  and  others,  2 1 8. 

P  ARTNE  RS  HI  P. 

5.  A  partnerfliip  is  diiToIved,  and 
all- the  company  eifeds  aliigned 
to  one  partner,  who  beccmes 
bcitundtopay  the  company  debts : 
He  becomes  a  bankrupt,  a  fpe- 
ciai  adl  of  infolvency  is  ^<i^ed 
in  his  favour,  exempting  his 
body  from  imprifonnienr,  upon 

.  his  affigning  his  property  to 
trudees,  for  the  ufe  of  his  cre- 
ditors. He  conipliss  -with  the 
provifion  in  the  ad,  and  affigns 
the  company  property  :  The 
company  debts  are  e;rhibi ted  to 

■•  his  truftees,  and  averaged  among 
Ms  private  debts  ; — the  other 
partner  is,  notwithuianding,  li- 
able to  pay  the  remainder  diie 
on  the  company  debts.  Morti- 
mer vs.  Cald'welh  53; 

2.  All  partnerlhip  contrads  are  in 
rheir  nature   joint  and  feveral.  , 
lhid>  55.       Bradley    vs.   Camp, 

3^  A  partnerftiip  in  trade  being 
formed,   the   partners    are,  by 

.  law,  liable  to  be  charged  for  a!i 
.  ci^dks  given  at  the  reqceil  of 
either  partner,  relating  to  the 
copartnerfhip  bufinefs,  until 
public  notice  is  given  of  a  dif- 
ibl ution.    Bradley  vs  Camp,  7-. 

^.  In  an  adion  on  partnerfhip  con 
tra6l,  if  the  fuii  be  againft  one 
only,  it  is  matter  of  abatement, 
but  cannot  be  taken  advantage 
of  under  the  general  iiTue.  ibid, 

M 


5.  In  cafe  of  joint  merchants,  each 
one  hath  an  implied  power  to 
contrad  for  and  bind  the  other, 
in  the  ccurfe  of  their  buiiDejs  j 
and  if  a  note  be  given  by  one, 
in  behalf  of  himfelf  and  part- 
ner, or  by  the  firm- of  the  com- 
pany, it  is  good  againli  all, 
Storer  VB.  Hinkiey ^  l^J.  Cham'' 
pi  on  vs.  Mum/ordf  172. 

6.  Where  one  of  two  joint  mer- 
chants'dies',  and  judgement  is 
recovered  againft  the  furviving 
partner  for  a  company  dtbt, 
and  he  becomes  a  bankrupt  be- 
fore fatisfadion  is  h'ad,  the  ex- 
ecutors of  the  other  may  be 
compelled  in  chancery  to  makg 
fatisfadioa.     I6id.  14.7, 

PAYMENT. 

1.  He  vv'ho  makes  payment  has 
right  to  dired  the  application, 
Kijfam  vs.  Burr  ail,  33-8. 

2.  Payment  in  continental  . bills 
cojindered.     75  —  392—425; 

PETITION  IN  EQUITYo 

i.  Peti::ion  in  equity  does  not  lie 

where  ade'quate  remedy  may  h& 

had  at 'law.    Lothrop  \^,  B^.n-net ^ 

I'bji 

2.  A  decree:  thereon  may  bs  fe£ 
afide  by  writ  of  error,  \i'  it  be 
contrary  to  the  courfe  of  cJia^- 
eery  proceedings,     ibid,  iZf^ 

3.  Scandalous  matter  in  a  petition 
will  not  abate  it,  whenconneft- 
ed  with  the  merits  of  the  caufe. 
Lanhdon  vs.  Scott y  356. 

4.  That  the  refpondent  profecuted 
a  perfon  he  knew  to  be  innocent, 
and  h^  fupprefTion  cf  a  faft,  he 
ir.ade^to  appear  guilty,  and  ob- 
tained an  award  by  means  there- 
of, in  his  own  favour,  and  a 
promifTory  note  in  compliance 
therewith  ;  is  fufficient  to  fuf- 
tain  a  petition  and  found  a  de- 
cree,    /^/V^.  358. 

IB  m 


A  TABLE  OF  THE  PRINCIPAL  MATTERS. 


New  evidence  may  be  (o  deci- 
five,  and  have  been  io  fuppref- 
ied  by  the  adverfe  party,  that 
an  award,  though  binding  at 
law,  ought  to  be  relieved  againfl 
in  equity.     I/?it^,  358. 

PLEADING. 

A  furrender  of  the  principal  in 
court,  by  the  bail,  is  not  plead- 
able as  matter  in  pais,  but  as 
matter  of  record.  FiuJ^  vs. 
Ha//,  18. 

,  On  a  joint  contra6>,  if  the  fuit 
be  againft  one  only,  it  muft  be 
pleaded  in  abatement,  or  all  ad- 
vantage is  (uppored  CO  be  waved. 
Bradley  Vi.  Camp,  8/^ 
.  The  defendant  cannot  demur  to 
the  declaration  after  having 
pleaded  to  iiTue.  ^oojler  vs. 
Simons,  89. 

■  Declaration,  *'  that  the  defen- 
**  dant  received  of  the  plaintiff 
*'  29I.  6s.  8d.  in  orders  on  the 
*'  one  fliilling  ti.x,  which  he 
"  promifed  to  r.eiurn  or  account 
•*for;"  adjudged  infufHcient 
for  uncertainty.  Grant  vs. 
yackfon,  90. 

■  Declaration  on  a  covenant  be- 
tween'aminifter  and  tlie people 
of  his  parifn,  that  he  fhould 
ferve  them  in  that  capacity  from 
the  time  of  his  iniUllment  dur- 
ing his  natural  life,  and  con- 
form himfelf  to  the  fyftem  of 
church  government  then  efla- 
blifhed,  and  not  vary  therefrom, 
without  the  confent  of  a  majo- 
rity of  the  fociety  and  church, 
under  certain  penalties,  pro- 
portioned to  the  time  he  ihculd 
continue  in  the  miniftry  before 
a  breach  of  the  covenant  (hould 
take  place.  The  declaration 
ftates  rhe  time  when  the  cove- 
nant was  made,  and  the  time 
of  the  breach,  but  not  the  time 
of  the  defendant's  inllallmcnt. 
Adjudged  infufHcient  for  uncer- 


tainty. SvcUty  tf  Seuth-Farm 
vs.  Bechnjouhi  91. 

6.  Demurrer  to  a  declaration,  cmr* 
taining  a  recital  of  the  obliga., 
tion  on  which  the  fuit  is  fouad- 
ed,  is  ill,  for  any  allegation  of 
variance  ;  the  advantage  ihotild 
be  taken  by  abatement  on  oy?r, 
or  demurrer  to  evidence.  />««• 
chy  vs.  Smith,  ic^. 

7.  In  28  adion  for  a  private.aflault, 
under  a  demurrer  to  the  com- 
plaint, it  was  cbjedled,  that  the 
jullicehad  not  certified  that  th^ 
complainant  (howed  his  wonnds 
or  mads  oath  to  the  fafcs ;  which 
vvas  adjudged  unneceffary  ;  or 
ifneceflkjy,  the  cmifTion  could 
only  be  pleaded  in  abatenxeot, 
Northrop  vs.  Brujh,  10%. 

8.  An  immaterial  fade  need  not  be 
traverfed.  Suffreinx^,  FrindU^ 
i«3.— Alfo,  ]3. 

9.  Where  pleadings  terminate  in 
demurrer,  the  court  will  go 
back  to  the  £ri!  ^tit^  to  render 
judgement.     lbid.ii^» 

10.  In  declarations  before  courts 
of  limited  and  inferior  juiifdic- 
tion,  it  ought  to  be  ^-x^iQ^ly 
averred,  that  the  caufe  of  adicn 
arofe  within  the  jurifdifticn  of 
the  court,     ^i^aojier  \&.  Par  fans, 

11.  Of  certainty  in  pleading,  and 
relative  terms.  ,/^V..  2^—30— . 
12.  When    w(viry  is   pleaded,  th«^  ^ 

plea  ought  to  fet  forth  iheprin-' 
cipal  fum  loaned,  and  the  fum 
included  for  interefl,  that  .it 
may  appear  whether  the  con- 
trad^  be  ufurious  or  not.  Clark 
vs.  Mcfes,  li^-i^^ 

13.  Under  the  pJea  o(  njun  nf  fat" 
turn,  the  defend<a,nt  m,ay  givQi. 
any  thing  in  evidence  .  whicJk 
goes  to  the  avoidance  of  the 
bond.     237,  . 

14.  Plene  adminiAravit,  not  la 
good  plea,    according    tQ.|ke 


A  TABLE  Off  THE  PRINCIPAL  MATTERS. 


laws  of  this  ftace.  Qicott  vs. 
Graham^  246. 

15.  Nor  is  want  of  siTets  pleadabk 
iirbar.     Phglps  vs,  S-wan, /\IQ, 

x6.  Declaration,  *' that  on  the 
**  zzd  day  of  June,  1786,  the 
<*  defendant  received  of  the 
*'  plaintiff  142I,  14s.  lod, 
"  lawful  money,  which  was  the 
"  proper  money  of  the  plaiiitiff; 
**  and  that  the  defendant  re- 
"  ceived  the  fame  for  the  plain- 
**  tiff's  ufe,  and  to  account  with 
*'  the  plaintiff  therefor  in  a 
*^  reafonable  time  afterward, 
"  when  thereto  requefted  ;  and 
*'  that  the  defendant  there- 
**  upon  became  liable  by  law 
'^  to  pay  the  plaintiff  the  afore - 
**  faid  ibm  of  142I.  14s.  jod. 
^'  and  being  fo  liable,  affumed 
'*  and  promifed,"  &c.  Ad- 
judged ill,  becaufe  the  decla- 
ration alledges  the  money  to 
have  been  received  to  account, 
and  there  is  no  ground  lefi  to 
raife  a  promife  to  re-pay.  A<ve' 
ry  vs.  Kin/man,  354. 

27.  A  contrary  opinion  held.  I6iei. 

35^    ■ 
,18,  When  the  replicadon  contains 

a  full  and   fu^cient    anfwer  to 

the   plea,    the   defendant  fliall 

not  refort  to  new  matter  which 

is   foreign.      Ruji  vs.    WiUhn, 

364. 

J9.  What  kind  of  uncertainty  in 
the  declaration  is  cured  by  ver- 
diifl.     Hall  \[S.  Crandail^    402. 

^o.  In  an  aftion  upon  a  bail  bond, 
taken  by  a  perfon  fpecially  em- 
powered, the  declaration  need 
fet  forth  nothing  more,  than 
«*■  that  the  plaintiff  was  lawful- 
**  ly  authorifed  and  empower- 
•'  ed,"  &c.     Gallup  vs.  Denni- 

>«»  433-  ,  . 
z\.  In  a  declaration  upon  a  bail 
bond,  it  is  fufficient  to  aver, 
that  the  execution  againft  the 
principal  was  returned,  with  a 
M  m  m 


proper  nen  efi  innjentus  endorfed 
thereon  in  due  form  of   law. 
Ibid.  434. 
Vide  Petition,  No.  2, 

PROBATE. 

1,  A  Judge  of  Probate  ought  not 
to  rejed  an  inventory  that 
contains  property,  the  title  of 
which  i%  difputed  ;  for  his  de- 
cifion  cannot  affedl  the  right  of 
trying  the  title  at  common  law. 
Gold*s  Cafe^  roo. 

2.  On  appeal  from  probate,  the 
fuperior  court  is  to  fix  the  prin- 
ciples of  law,  but  is  not  autho- 
rifed to  proceed  in  t\it  fettle- 
meet  of  the  eftate.  Cafe  vs. 
Cafe^  284. 

F/V^ Limitation  of  Adions,  No.  2. 

PRO  CHE  IN    AMY. 

1 .  Though  v/e  have  no  flatute  atj« 
thorifing  fuits  by  prochcinamy, 

.  yet  it  iz  acthorifed  hy  long 
praaice  and  the  reafon  of  th<j 
cafe.      Jpihorp  vs.  Backus,  409. 

2.  It  is  not  neceffary  hy  our  prac« 
tice,  that  there  iTiould  be  a  re- 
cord of  the  admrilion  of  thepro- 
chein  amy  j  for,  from  the  na» 
ture  of  the  cafe,  and  the  mode 
of  procefa  here  ufed,  tacit  ad« 
miffion  is  fufficient.    IBid.  410. 

3.  But  if  a  formal  record  of  the 
admiffion  be  neceffary  to  au- 
thorife  the  appearance  by  pro- 
chein  amy,  the  defed  is  cured 
by  verdid-.     Ibid.  ^11, 

4.  Neither  prochein  amy  or  guaf« 
dian,  are  obliged  always  to  ap- 
pear in  perfon,  but  may  appoinc 
an  attorney  to  appear  for  them. 
Ibid.j\.iz. 

^.  But  an  appearance  by  attorney, 
appointed  by  the  infant,  cannot 
be  taken  advantage  of,  to  de- 
feat a  verc'idl  in  favour  of  the 
infant.    Ibid,  lii^ 


A  TABLE  OF  THE  PRINCIPAL  MATTERS. 


R. 

RECOGNIZANCE.  ^ 

1,  Recognizance  for  Cpecjal  .bail 
may  be  taken  fo  the  perion  for 
whofe  benefit" "'it  ia  .intended. 
Nott  vs.  Wailes,  12 — J78. 

2,  Recognizaace^to  be  of  good  be- 
havioilr  mufl  be  taken  till  the 
next  court  of  common  pleas, 
leaving  it  to  the  difcretion  of 
that  court  to  continue  or  dif- 
charge  the  bonds, .  Bi/I  vs.  Scott, 
62. 

3,  The  party  for  whofe  benefit  a 
recognizance  is  taken,  may 
Kave  a  fch-e  faciasl\itr&ot\,  whe- 
ther he  be  th.=!  coanuiee  or  not. 
Bijhop  vs.  Drake,  378. 

RECORD. 

Vide  Amendment. Averment, 

No.  3.  — Bail,  No.  \, — Error, 
No.  4,  5. — Prochein  Amy,  No. 
25,  3. — Reverfal. 

REPLEVIN. 

A  writ  to  replevy  goods  taken  by 
attachment,  is  not  an  adverfary 
fuit,  but  a  mandatory  precept, 
and  ought  to  be  directed  to  the 
officer  who  fcrved  the  attach- 
joent.  Denni/ott  vs.  Raymond, 
274. 

REVERSAL. 
Reverfal  of  a  judgement  removes 
all  effefts  of  the  former  plead- 
ings, and  the  record  of  them  is 
xio  evidence  of  the  truth  of  fadi 
therein  averred  or  admitted. 
Rofe  vs.  Broixitti  294. 


SCIRE  FACIAS. 
1.  On  fcire  facias  againft  garni- 
iliee,  he  can  take  no  advantage 
of  any  defects  in  the  original 
fuit,  which  might  have  been 
pleaded   in, abatement  by   the 


original  debtor.  Minor  vs.  Cooky 
157.— 256,  S.  P. 

2.  A  fcire  facias  is  a  judicial  writi 
iiTiing  for  the  pur  pofe  of  carry- 
ing into  effe^  an  antecedent 
judgement;  and  ought  to  iffue 
from  the  court  rendering  fach 
judgement,  where  the  recoitds 
of  it  remain.  Jawtt  vs.  Rath" 
burn,   220. 

Vide  Foreign  Attachment,  No^2. 
Recognizance,  No.  3. 

SETTL  EMENT. 
Under  what  circumftances  a  mar- 
ried v/oman  may  gain  a  fettle- 
ment  by  commorancy.     WiUott 
vs.  liuikley,  19^, 

SHERIFF. 

1.  A  fheriii  is  not  liable  to  im- 
prifonment  in  a  civil  fuit,  AHjb- 
ry  vs.  VVetmore,  48. 

2.  A  fhcFifF  may  be  fued  uponthe 
ftatutc  for  negleding  to  return 
an  execution  iiTuing  from  the 
fuperior  court,  in  any  county 
where  either  party  dwells,  whe- 
ther the  original  judgement  wai 
there  rendered  or  not.  Bur' 
ronvs  vs.  Fitch,  II3.  ^ 

3.  The  llaerifF  takes  a  bond,  to  (tm 
cure  againfl  the  default  of  his 
deputy,  in  execution  of  the  office 
of  deputy-iherifF;  fueh  bond 
will  not  hold  to  fecure  againft 
any  default  of  the  deputy, -upoii 
continuance  in  office  after  the 
time  expiree  for  which  he  was 
deputed  at  the  date  of  the  bond; 
Williams  vs.  Miller,  189. 

4.  A  fherifF  cannot  become  bailj 
or  be  anfwerable  in  that  cha- 
rafler  for  any  perfon  by  him  ar- 
reted ;  but  if  he  fuffers  the  ptr- 
fbn  arrefted  togo  at  large,  with- 
out taking  fufficient  bail,  he  i« 
anfwerable  in  his  official  cha- 
racter.     Bro^nxs.  Lord,  zog. 

5.  A  writ  direded  to  the  (herifF 
maj  be  ferved  by  his  general 


A  TABLE  OF  THE  PRINCIPAL  MATTERS. 


or  fpecial    deputy.     Clark   vs. 
Brayf  240.  ^    , 

SOCIETIES,   Ecclefiafticsl. 

1.  Each  town  in  this  ilate,  not  di- 
vided intopariihes,  is,  by  law, 
a  corporatioa,  for  ecclefiaflical 
purpafes,  as  well  as  civil,  and 
hath, power  in  either  capacity 
to  acquire  and  hold  eftates. 
Huntington  vs.  Carpenter,  46. 

2.  The 'name  and  defcriptioa  by 
which  they  receive  eftates,  and 
tranfadt  bufinefs,  in  their  eccie- 
iiaftical  and  civil  capacity,  is 
she  fame,  viz.  **  The  inhabi- 
tants of  the  toivn  of,  *'^f .  Ibid. 

46. 

3.  When^part  of  the  inhabitants 
of  a  town  are  conilituted  a  new 
pariCh,  or  fociety,  the  remaio- 
ing  inhabitantsare  by  law  con- 
fidered  (for  eccleiiaftical  pur- 
pofes)  as  the  fame  corporaiion. 
Ihid.jfi. 

.STATUTE. 

1.  At  what  time  a  fiatute  (hali  be 
faid  to  take  efFeft,  whether  at 
the  rifing  of  the  legiilature,  or 
before.  Woojiers^^  ParjonSi  30> 

a.  The  ilatute  refpefling  limited 
eftates,  is  in  afiirmanee  of  the 
commoa  law.  Chap  pel  vs, 
Bre^Jler,    176. 

3.  The  ilatute  again  ft  felling  con- 
troverted tides,  where  the  feof- 
for is  not  in  poffeffion  at  the 
time  of  conveyance,  does  not 
extend  to  the  government  of 
the  ftate.     Allen  vs.  Hoyt^  221. 

STATUTES, 

,CoNST,Rtr.ED  ^J?z^  Explained, 
I  Statute  refpeding   working  un- 

fealed    leather.        Church    vs. 

^homfotit  98. 

2.  AgainH:  counterfeitirfg.  l^he 
State  vs.  Stut/on,   52.  "*■ 

3.Kefpe(aing  dower.     Bs^rs.and 


ethers  vs.  Strong  and  nvi/e,   19; 

4.  Statute  for  the  equitable  deci- 
fion  of  tenders  in  certain  cafes. 
Kimball  vs .  Cady^  43 . 

5.  Refpeding  fuits  againfl  (lierifFs, 
for  negled  of  duty.  Burrows 
vs.  Fitch,  II3« 

6.*Statute  allowing  confeffions  for 
debt  to  be  taken.  Wight  vs, 
Mott,  152. 

7.  Scatate  providing  for  poor  and 
impotent  perfbns.  Mack  vs. 
Par  font  f   155. 

8.  Refpeding  the  oath  of  Hdelityc' 
Gilbert  v^.  Rider,    184. 

9.  Limiting  appeals  from  probate. 
Merrils  vs»  Adams,  .247. 

10.  Statiite  againft  uiury.  Hamlin 
vs.  Fitch^  z6q. 

J  i .  Limitation  oi  Actions.    .26^,- 

299. 
12.  Statute    regulating    goals.™- 

CLirk  vs.  County  of  Litchfield^ 

323- 

SURETY. 

Afurety  may  fuilain  an  adion  oa 
the  cafe  againfl:  his  principaL 
for  payment  of  the  proper  debt 
of  the  principal.  Bunce  ^^s^ 
Bunce,    137. 

-S  U  R  R  E  N  D  E  H 

PRINCIPAL  IN    COURT. 
Vide  Baii;»  No.  1—6. 

T. 
T  A  X  E  S. 
A  coUeiTior  of  taxes  may  fuftain  zxl 
adlion  againft  an  executor  or  ad- 
miniflrator,  to  recover  taxes  due 
from  the  deceafed.  '  Eno  vs. 
Roberts,  i<)i,  Eno  vs.  Cornijh^ 
296. 

TENDER. 
I.  The  flatQte  for  the  equitable 
decifion  of  tenders  in  certain 
cafes,  extends  not  to  cafes  ad- 
judged and  clofed  at  hw.  Kim- 
ball vs,  Caclyt  4.3, 


A  TABLE  or  the  M I NCI PAL  MATTERS- 


s.  After  the  body  is  taken  in  ex- 
ccuiion  foj*  debt,  if  fofiicient 
eftace  be  tendered,  it  (hall  be 
rcleafed.  Gilbert  vs.  Rider,  i8«. 

3.  BsneUt  of  a  tender  is  loft,  by 
fubfequent  demand  and  refafal. 
Roje  Vi.  BroiJUn,  zg^, 

4.  Tender  of  paper  money  in  the 
ftate  of  Rhode-lilatid  confider-- 
ed.  Mumf or d  s%.  Wright yZ^'j. 
IP  lace  vs.  Lyon^  406. 

TR^ESPASS. 

1.  In  an  adioa  again  ft  itvt^z\  de- 
fendants, for  a  joint  trefpafsj 
the  plaintifF  may  enter  a  nolle 
profequiy  as  to  part,  and  proceed 
againil  the  others.  Wilford  vs. 
Grant y    I16. 

2.  So  if  judgement  be  recovered, 
and  execution  levied  on  oneon- 
Jy,  h«  cannot  compel  a  contri- 
bution, it  being  ioi  a  tort. 
ihU.  1,16. 

.VERDICT. 

1.  It  does  not  vitiate  a  verdi(5l, 
that  the  jury  have  miftaken  the 
law  or  the  evidence  ;  for  by  the 
pra6lice  of  this  ftate,  they  are 
judges  of  both.  Witter  vs. 
Bre^wjier,  422—427. 

2.  But  if  they  fhould  find  contrary 
to  matter  of  record,  or  of  eftop- 
pel,  or  what  is  admitted  by  the 
pleadings,  the  verdid  would  be 
exceptionable.     /^/V.  423. 

3.  In  an  aflion  of  trefpafs  againft 
a  number  of  defendants,  who 
feveraliy  plead  not  guilty,  a 
verdidt  not  mentioning  all  of 
theni,  may  be  fet  afide,  for  not 
comporting  with  the  ifTue.  424. 

Vide  Jurors  and  Jury,  No.  3. 


U. 


USES  AND   TRUSTS. 
X.  Lands  were  graated  to  J.  B. 


his  heirs  and  afiigns,  to  hold  la 
truft  for  A.  T.  during  the  term 
of  her  natural  life,  and  after  her 
deceafe,  in  truft  for  the  children 
born,  or  to  be  born  oi  the  faid  A« 
T.  and  to  their  heirs  and  aifigns 
forever  :  Tah  was  held  to  be 
an  abfolute  eftate  in  the  children 
of  A.  T.  Bacon  vs^'Tajlor,  368. 

2.  The  do(5lrine  of  ufes  is  oppofed 
to  the  policy  of  this  country* 
Hid.  369. 

3.  A  contrary  opinion  held,  IM. 

37^- 

•USURY. 

1.  When  ufury  is  pleaded,  the  plea 
ought  to  fet  forth  the.principal 
fuia  ioaned,-and  the  fum  include 
ed  for  intereft,  that  it  may  ap- 
pear whether  the  contrad  be 
ufurious  or  not.  C/ariv^,Mafes, 

2.  A  contraft   is  not  witnin  the 

ftatute  againft  ufury,  .unlefs^  it 
be  for  the  re-payment  of  a 
greater  value  than  the  thing 
loaned,  befidcs  the  advance  of 
fix  per  cent.  Hamlin  vs.  Fiich^ 
260. 


W. 

WARRANT. 

1 .  The  officer  is  bound  by  his  war- 
rant, unlefs  void  on  the  face  of 
it.      Gilbert  vs»  Rider t    18-2       ' 

2.  A  warrant  to  fearch  all  fufpe£t- 
ed  places  illegal.     215. 

WILLS. 
Vide  Feme-Covert,  No.  i — 1, 

WITHDRAW. 

The  plaintiff"  is  not  at  liberty  to 
withdraw  his  aftion  after  ver- 
dift  of  the  jury  is  returned  ;  nor 
after  a  return  of  arbitrators  or 
auditors  j  nor  after  the  court 
have  exprcfied  the  fubftancc  of 
a  decree  ir»  chancery,  though 


A  TABLE  OF  THE  PRINCIPAL  MATTERS. 


no  bill  in   form   be  paiTed.— 
M'Cui'iiy  vs.  Mather,  273. 

WITNESS. 

1.  Witnefs  not  admifiible  to  prove 
what  a  perlbn,  not  party  to  the 
fuk,  but  party  to  a  fraadulent 
contract,  abotit  which  the  fuit  is 
conv«rfant,  faidagainft  himfelf. 
Woodruffv^,  Whittle  fey  i  62. 

2.  The  point  in  qaeftion  was,  whe- 
ther there  had  been  a  fraudu- 
lentconveyance  ;  wimefTes  were 
r^Qt  admitted  to  prove  the  cha- 
rader  of  the  parties  to  the  fup- 
pofed  fraud,  as  to  honeily .   I6i£f. 

g.  In  an  aflion  qui  tarn,  where  the 
party  claims  damages,  he  can- 
not be  a  witnefs.  Bill  vs.  Scotty 
62, 

4.  la  an  adion  for  flanderous 
words,  witneiies  are  not  admjf- 
fible  to  prove  fpecial  damages, 
unlefs  alledged  in  the  declara- 
tion.     B^fiTAJtck    vs,  -  Nickel fon, 

:  65.      Boj?xvickvs.  Ha-ivleyf  2^0, 

5.  A  witnefs  is  interefted,  and  in- 
.  admiffible,  where  he  has  a  pro- 
.  mife  to  receive  part  of  the  avails 

of  thefuit,  in  cafe  of  a  recovery. 
Bm^cfid  vs.  Bron/on,  70.  - 

6.  Though,  if  the  party  be  in- 
debted to  hina,  and  have  novi- 
fible  means  of  payment^  bin  by 
recovery,  that  alone  will  not 
exciade  him.     Ibid.ji^ 

^  The  ilatute  which  admits  inte- 
refted perfons  to  teiiify  in  the 
action  of  book-debt,  is  not  pe- 
remptory ;  there  may  be  ex- 
ceptions where  he  (hall  be  ex- 
eluded  his  teftimony.  Bunder' 
Jon  vs.  SbaWi  150, 


8.  The  drav>?er  of  a  bill  or  order 
cannot  be  a  witnefs,  to  prove 
either  the  payment  or  accept- 
ance of  it.  Huntingionv^.  Chain- 
pliriy  166. 

9.  Diflindlions  refpefling  the  de.- 
grees  of  interell.     Ibid.:i6<). 

10.  In  an  a£^ion  on  the  caie  for 
words,  witncfles  \ve|e  not  ad- 
mitted to  prove  that  the  defen- 
dant had  fpoken  like  words,  af- 
ter the  ccnuraencement  of  the 
i^flion.   Holmes  \%.  Bro^wn,  ic^i. 

il.  An  interefted  witnefs  mdy^bQ. 
permitted  voluntarily  to  teftify 
againil  his  intereil,  though  he 
cannot  be  compelled.     203. 

12.  What  a  witnefs  teillfied  wha 
is  dead,  may  be  given  in  evi- 
dence.     Fitch  vs.  Hyde,  259. 

13.  Where  one  endorfes  his  namg 
to  a  blank  on  the  back  of  a  note, 
the  holder  may  write  over  it  a 
power  of  attorney,  or  affign-- 
ment  with  warranty  j  andvvit- 
nefTss  are  not  adrniffibieto  prove 
any  agreement  to  the  contrary c 
HuncTfrford  vs.  Thorn/on,  303. 

Ftde  New  Trial,  No.  5V6.~Ap^ 
peal.  No.  8. 

WORDS. 

i .  Words  are  not  to  be  eafeen  in  a 
milder  fenfe  after  verdid,  which 
afcertains  them-  to  have' beeu 
fpoken  maliciouily.  Bi:ers  vsc 
Utrongy    12.    - 

2.  Words  in  a  deed  muft  be  taken 
in  connexion  with  the  fuhje«ft 
matter  to  which  they  are  re- 
lated. M'Clellan  vs.  Morris , 
14c. 

Fid&  Witnefs,  No.  4— lOo 


:F     INI     S. 


Ei 


/RRATA.— Page  9,  line  10  from  bottom,  nad  **  rmiiiUfs,'^''-^ 
p,    1,  1.  6  from  top,  read,  and  the  fmall  fums,  &c.    omitting,  **  tbat^* 
p.  17,  1.,  2  from  bottom  (for  fwill  lay)  read,   njuell  lay — p.  19,   in  the 
margin    {ior  pro'vijionsj  read,  pro'vijion — p.  42,   1.    14  from  top  (for 
each  J  rtzdy  /ucb—^p.  44,  1.  2  from  bottom    (for  each  others  like  proper* 
tions)  read,  each  others  proportions^^.  45,  1.  4  from  top    (for  as  lejee) 
read,  leffee—-^.  49,  I.  10  from  top  (for  on  traver/e)  read,  or  tranjerf'e'-^ 
p.  54,  1.  9  from  top  {lor  from)  TQa.d/or^p.  64,    in  the  margin,  read, 
fublljhing^^p.  77,  bottom,  note,  I.  3,  read,  in  theEnglifa  books,  ^c— 
'  aifo,  1.  9,  read,  ^-verdi^i  he  not  founds  &c. — alfo,  latt  1.  read,  M' Donald 
vs.  Fijher,  i^c. — p.  187,  I.  l6.from  top  {ior  profit)  read,  profert^p.  90^ 
1.  7  from  top  (for  thereon  been  rendered)  read,  thereon  rendered — p.  1 15, 
1:  8  from  topi  between  the  words,  fuitfor^  infert  comma-'-ip.  134,  I.  7 
from  top,  after  the  word  tho/e,   omit  Jemieolon—'p.  137,!.  6  from  top, 
read,  probable  to  ha've  had,  &<r.--airo,  1.  6   from.bottom>  xi^Sid^agatnJ^ 
Jonathan  Bunce,  the  pre  lent  defendant,  ^r.-.-p    159,    I.   15  &  l6frDm 
bottom,  omit  the  words,  to  fiand  charged—-^,  160,  1.  2  irom  top,  omit 
the  word,  up  --^.  167,  I.  18  from  top  {Jv,x  payor)  ready  payee- -p.  172, 
I.  17  from  bottom  (for  herein)  re2.d,  therein--3.\^o,  in  the  margin,  read, 
ante  147---?.  176,  1.  5  fj'om  top,  read,  fee-tail  male—p.  igg,  at  top, 
read,  Judgement  of  a  Jufice—p.  205,  ,1.  9  from  bottom,  omit  the  word 
ef—'p.  212,    1.3  from  bottom    (for /«/y?^^J  read,  /«///^i^^«— -p.    221, 
margin,  read,  the  feoffor  is  not  in  pajejpon—p ■  273,  1.  8  from  bottom, 
read,  if  Jhall  he  --p.   281,   I.   15  irom  bottom  {i'or  re<vertj)  read,  re^ 
*vejls"-p.  291,  (for  Beckman)  read,   Beekman-.-p,   302,    i.  9  from  top 
(for  caufe)  read  cafe— p.  303,  I.  7  from  bottom,  read,  take  it  out  ofthi 
ftatutCy  ^r.  —  alTo,  1.  5  from  bottom,  read,  that  the  debt^-^p.  309,  1.  10 
from,  top  (for  only  till)  rt&d,  not  till— p.  346,  1.  15  from  top    Uor  cm- 
fequence)  read,  concern—p,  389,   1.  10  from  top  (for  memoncem)  read, 
memoriam—p.    390,   1.  14  from  cop   {(or  put  off),   read,  put  cut  ef— 
p.  293,  1.  16  from  top   (for  nnarrantee)  read,  lAjarranty'-^p.  400,  1.  4' 
from  top  (for  the  cojls)  read,  cofs- -(rom  p.  406,  to  426,  in  the  running 
title   (for  February  Term)  read,  March  Term--'p.  428,    1.  5  from  top 
{for  land  quejlion)   read,  land  in  quejlion^'p,  ^^z,  J.  3  from  top   (for 
Confiabks)  tei^dConfiable, 


S  U  B  S  e  R  IB  E  R  S'    N-A  M-E-  S. 

Jabez  Clark,  Efq.-  Attorney  at  Law,  Windham. 

John  Clark,  Efq.  Lebanon. 

Mofcs  Cleaveland,  Eiq.  Attorney  at  Law,  Cantcjrbury. 

Y/iiikm- Cock,  Efq..  Counieliot  at  Law,  and  Rcgiiler  in  Chancery, 

New- York, 
jofhua  Coit,  Efq.    Attorney  at  Lawi  New-Londoa» 
Will  am  Coit,  Efq.  New-London. 
I>aniei  Gooley,  Efq.  Ridgefield. 

Thotpas. Cooper,  E*q.  Attorney  at  Law,  New-Yorkv^ 
Mr.  Garwood  H.  Cunningham,  Woodbury. 
Eli  Curtis,  ETq.  Attorney  at  Law*  Watertown. 
Henry  Daggett,  Efq.    New- Haven. 
jDavid  Daggett,  Efq.  Attorney  at  Law,  Do. 
Samuel  W.  Dana,  .Ei^.  Attorney  at  Law,  MiddktOWBi 
ilbraham  V/H.  Dewitt,  Efq.  Do.  Miiford, 
V/iiham  Dixon,  Efq.  Do.   Plainfieid. 
Pierpoint  Edwards,  Efq,  Do.  New-Haven* 
Y/illram  Edmonds,  Efq,  Do.   Newtown. 

John  Elmore,  Efq.  Do.   Canaan. 

ianiel  Everitt,  Efq.  Do.-  New-Milfordo 

Jarnes  Fairlie,  Efq.   Do.  Albany, 

Thomas  Fenn,  Efq.  Watenown. 

Mr.  Abel  Flinty  Providence3.  Rhode Jiland, 

"Dr.  Samuel  FriiBie,  New-Lebanon. 

Jonathan  Frilbie,  Efq.   Attorney  at  Law,  Norwich^ 

Daniel  Froft,   Efq.   Canterbury. 

Sylvefter  Gilbert,  Efq.   Attorney  at  Law,  Hebron » 

]onathan.Gillett,  jun.  Efq.   Do.  Sharon. 

Chancey  Goodrich,  Efg.  Do.  Hartford. 

Elizur  Goodrich,  Efq.   Do.   New-Haven. 

Thomas  R.  Gold,  Efq.  Do.  Cornwal. 

John  Graham,  Do    Rutland,  Vermont. 

John  Griffin,  Efq.  Attorney  at  Law,  Putney,  Yermpnt* 

Edward  GriTtvold,  Efq.  Do.  New-York. 

Roger  Grifwold,  Efq.  Do.  Norwich. 

Matthew  Grifwold,  jun.  Efq,  Do.  Lyme, 

Kathan  Hale,  Efq.  Canaan. 

Kiland  Hall,  Efq.  one  of  the  Judges  of  the  Court  of  Common  fkm 
for  the  County  of  Addifon,  Vermont. 

Jeremiah  Halfey,  Efq.  Attorney  at  Law,  Prefton. 

Lott  Hall,  Efq.  Attorney  at  Law,  Weflminfter,  Vermont*. 

Mr.  Benjamin  Hanks,  Litchfield. 

Mr.  William  S.  Hart,  Student  at  Law,  Do, 

Major  John  Hart,   Saybrook. 

Mr.  John  Hart,  jun.   Southington, 

W^illiam  Hawley,  Efq.  Reading. 

Eliiha  Hide,  Efq.  Attorney  at  Law,  Norwich. 

James  Hillhoufe,  Efq.  Do.  New-Haven. 

Captain  Noble  Hine,  New-Milford. 

Edward  Hinman,  Efq.   Attorney  at  Law,  Woodbury. 

aaraud  Hitchcock,  Efq.   Do,  Mancheftcr,  Vermont, 


SUBSCRIBERS      NAMES. 

HON.  Andrew  Adams,  Efq.  Litchfield. 
John  Allen,  Efq.  Attorney  at  Law,  Do. 
Mr.  Frederick  Allen,  Groton. 

Keuben  Atwatcr,  Efq.  Attorney  at  Law,  Weilminfter,  VerinoRt. 
David  Auilin,  Efq.  New-Haven. 
Aaron  Auftin,  Efq.  New-Hartford. 
Mr.  Jonathan  Auftin,  Montvill. 
Mr.  Levi  Audin,  Canaan. 

Stephen  Babcock,  Efq.   Attorney  at  Law,  New- London. 
Simecn  Baldwin,  Efq.  Attorney  at  Law,    New  Haven, 
Mr.  Ebenczer  Baldwin,  Deputy  Sheriff,  NewMiifurd. 
Jofeph  Barker,  Efq.  Brooklyn. 
Joel  Barlow,  Efq.   Attorney  at  Law,  Hartford. 
Jonathan  Barns,  Efq»  Attorney  at  Law,  Tollsnd. 
John  Barrett,  Efq.  Northfield,  MakTachui'etts. 
Ifaac  Beer?,  Efq.  New-Haven, 
William  Pitt  Beers,   Attorney  at  Law,  Fair5eli* 
Thaddeus   Benedid,  Efq.  Do".  Reading. 
Stephen  Betts,  Efq.  Reading. 

Barna  Bidwell,  Efq.  Attorney  at  Law,  New-HaVcn. 
Hezekiah  BifTell,  Efq.  Attorney  at  Law,  Windhani. 
David  Biilell,  Efq.  Do-    Fomfret. 

MeiTrs.  Daniel  &  Elijah  Bordman,  Merchants,  New-Milford. 
Samuel  Boftwick,  jun.  Efq.  Attorney  at  Law,  New  Milford. 
Jonathan  Brace,  Efq.  Do.  Glaftenbury. 
Hon.  Stephen  R..  Bradley,  Efq.  ona/of  the    Judges  of  the  Su^peri-CP 

Court,  Weftminrter,  Vermont. 
Abraham  Bradley,  jun,  EfqT  Attorney  at  Law,  Litch^^eid. 
Jeremiah  G.  Brainard,  Efq.    Attorney  at  Law,  New- London; 
Daniel  N.  Brindfmade,  Efq.  Do.  Walhington. 
Sherh.  Butt,    Efq.   Canterbury .^ 
Gideon  Buckinghatsij  Efq.  one  of  the  Judges  of  the  Court  ofCommca 

Pleas  for  the  Cdunty  of  Ncw-Haven,  Milford. 
Samuel  Canfield,  Efq.  one  of  the   Judges  of  the  Court  ©f  Coaimca 

Pleas  for  the  County  of  Litchfield,  Ne^-Miiford. 
Judfon  Canfield,  Ef^  Attorney  at  Law,  Sharon. 
Mr.  William  Carter,  Ncw-Haven. 
Charles  Chancey,  Efq^  Attorney  at  Law,  New- Haven. 
John  Chandler,  Efq.  one  of  the  Judges  of  the  Court  of  CcrnimCn  Pk»s 

for  thfr  County  of  Fairfield,  Newtown. 
Thomas  Chefter,  Efq.   Attorney  at  Law,  Weatheriiield, 
Nathaniel  Chipman,  Efq.  Do.  Tinraouth,  Yermcnt. 
Darius  Chipman,  Efq.   Do.  Rutland,  Do.     . 
Samuel  Chipman,  Efq.  Do.   Ferriibwr^;,  De** 
Mr.  Stephen  Qhubla,  jftn«  .>Iew-Hart£yp.d. 


SUBSCRIBERS    NAMES/ 

Uriel  Holm?s,  Efq.  Hartland, 

U/iel  Holmes,  jiin   Efq.  Attorney  at  Law,  New-Hartford. 

S:  Titus  Hofmer,  Efq.  Do.  Middletown. 

Samlbn  How,  Efq.  Killingly. 

Elijah  Hubbard,  Efq.  Middletown, 

Major  Benjamin  Hubbard,  Pomfret. 

James  M.  Hughes,   Efq.  Attorney  at  Law,   and  Mafler  in  Chancery,. 

New- York. 
Dudley  Humphrey,  Efq.   Attorney  at  Law,  Norfolk. 

Jedidiah  Huntington,  Efq.  Treafurer  of  the-Stateof  Connefticut,  Nor- 
wich. 

Hon.  Benjamin  Huntington,  Efq.  Reprefeutative  in  Congrefs  from  the 
State  of  ConnedlicQt. 

Colonel  Ebenezer  Huntington,  Norwich, 

Mr.  Ruffell  Hunt,  Canaan. 

Jonathan  Ingerfol,  Efq.  Attorney  at  Law,  New-Haven. 

Samuel  W.  johnfon,  Efq.  Do.  Ifland  of  Bermuda. 

Kobert  C.  johnfon,  Efq.  Do.  Stratford. 

Mr.  James  Johnfon,  Deputy-SherifF,  Salifbury. 

Mr.   John  Jones,  New-Lebanon. 

William  Judd,  Efq.   Attorney  at  Law,  Farmington^ 

Mr.  Daniel  Judfon,  Student  at  Law,  Litchfield. 
.  John  Keefe,  Efq.  Attorney,  at  Law,.  New- York. 

James  Kent,  Efq.  Do.  Poughkeepfie, 

Bavid  Kilborn,  Efq.  Colchefler. 

Samuel  Knight,  Efq,  Attorney  at  Law,  Brattleboroughj  Vermont. 

Calvin  Knowlton,  Efq.  Do.  New-Fane,    Vermont, 

Samuel  Lane,  Efq.  one  of  the  Judges  of  the  Court  of  Common  Picas 
for  the  County  of  Addifon,   Vermont. 

John  Lawrence,  Efq.  Counfellor  at  Law,   New- York. 

Mark  Leavenfworth,  Efq.  Attorney  at  Law,   New-Haven« 

Mr.  Jonathan  Leavitt,  Do. 

Chancey  Lee,  Efq.  Attorney  at  Law,   Salifbury. 

John  M'Clellan,.  Efq.  Do.  Woodftock. 

Abijah  ME  wen,  Efq.   Stratford. 

Mr.  Samuel  Marcy,  Afhford. 

Mr.  Rafael  Marfhall,  Torrington. 

.Charles  Marfh,    Efq.  Attorney  at  Law,  ^Wooftock,  Vermont. 

Samuel  Marfti,  Efq.   Do.  Litchfield. 

Nicholas  S.  Mafters,Efq.  Do.  New-Milford. 

Afher  Miller,  Efq.  Do.  Middletown. 

Mr.  Ifaac  Mills,  New-Haven. 

:'Nathaniel  Minor,  Efq.  Attorney  at  Law,  Stonington. 

Hon.  Stephen  M.  Mitchell,  Efq.  Weathersfield. 

James  Morris,  jun   Efq.  Litchfield. 

Mr.  L.  R.  Morris,  Student  at  Law,   Springfield,    Vermont. 

Roger  Newberry,  Efq.  Attorney  at  Law,  V/indfor. 

William  Nichols,  Efq.  Do.  Hartford. 

Mr.  Angus  Nickelfon,  Merchant,    New-Milford, 

William  Noyce,  Efq.  one  of  the  Judges  of  the  Ceurtof  Coxrij?icr/Pleas 
for  the  Cdumy  of  New-London,  Lyme, 
N  n  n  2 


S,  U  B  S  C  R  1  B  E  S.  S    ISr  A  M  £  S. 

Tolin  Parifh,  Efq.  Canterbury.  ^      ,     „r  ^        rrv     •  * 

Hon.  S.  H.  Parlons,  Efq.  one  of  the  Jndgcs  for  thcWcHern  Terruoiy; 

Marlhfield  Parfons,  Efq.  Lyme.  ^r       ^r     ^     . 

.Aratifa  Payne,  Efq.  Attorney  at  Law,  Wmdlar,  VcrmoBt* 

Klillia  Payne,  Efq.  Do.  Canterbury. 

Divia  Payne,  E.'q.  Do. 

Mr.  Solomon  Peck,  Harwinton.  .       ■      ,      ^    i 

Enoch  Perkins,  Efq.  Attorney  atLavv,  HartfoJ-d, 

Nathan  Peters,  Elq.  Do.  Prellon.  ^ 

Mr    Augullus  Pettibone,  Student  at  Law,  I\orfolk. 

Charles  Phelps,  Efq.  one  of  the  Judges  of  the  Courtof  Common  Ple*« 

for  the  County  of  New-London,  Stonington. 
Mr.  Elijah  Phelps,  Lanefborough. 
John  Pierce,  Efq.  Cornwall. 
Mr.  George  Pitkin,  jan.  Eafl-Hartford. 
Mr.  Timothy  Pitkin,  jua.  Student  at  Law,  Farmin-gton. 
William  Plumb,  Efq.  Attorney  at  Law,  Middleiewn. 
Kzekiel  Porter,  Efq.  Rutland,  Vermont, 
Daniel  Potter,  Efq.  Watertown. 

Mr.  Jonas  Prentice,.jun.^6tadent  at  Law,  New-Have». 
Nathan  Prefton.Efq.  Attorney  at.La;^',  Woodbury. 
Jacob  Radclift,  Efc,.  Attorney  a:  Law,  Red-Hook. 
Tapping  Reeve,  Efq.  Dp.. Litchiield. 
Mr.  James  Rivingion,.  New-York., 
J.  Roorbach,  Efq.  Auorncy  at  Law,  Do, 
jeffe  Root,  Efq.  Do.  Hartford. 
Nathaniel  Roffeter,  Efc.t Do.  Guildfoxd. 

Mr.  John  Salter,  'Mansfield.  ^  V 

Peter  Van  Schaick,  Elq.vCouD.fi;IIor  at  La\\s  Kinderhook. 
Thomas  Seyn^ourp  Efq.  Mayor  of  theXity  of  Hartford,  and  otic  of  the 
Judges  of  the  Court  of  Common  Pleas  for  the  County  of  Hanford* 
Thomas  Y.  Seymour,;  Efq.  Attorney  at/Law,  Hartford. 
Major  Moles  Sey.iTxOur,.  J. itcbfield. 
Daniel  Sherman,  Eiq.  Chief  Judge  of  the  Cbwn  of  Common  Pleas  for 

the. County  o-fX.itchfi.eld,'Wcocbary. 
Mr.'Eiias  Shipman,  Merchant,  New-Haven, 
Samuel  C.  Silliman.^Efq..  Norwalk. 
Elihu  Smith,  Efq.  Clareiidon, 'Vermont, 
l)avid  Smith,  Eiq.  Watertown. 
Seth  Smith,  Ef:q.'Ne.w-Hartford. 
Nathaniel  Smith,  Efq.  Attorney  at  Law,  Woodbury, 
Ifrael  Smith,  Efq.  Do.  Ruport,  Vermont. 
John  C.  Smith,' Efq.  Do.  Sharon. 
Samuel  S.  Smith,  Efq    Do.. Reading, 
Mr.  Samuel  Southmayd,  Watertown. 
Afa  Spalding,  Elq.  Attorney  at  Law,  Norwich. 
Mr.  Abel  Spencer,  Clarendon,  Vermont. 
Oliver  Stanley,  Elq.  Attorney  at  Law,  Wallingford, 
Dr.  Ezra  Starkweather,  Worthington. 
Colonel  Jofiah  Starr,  New-Milford.    . 
Thomas  Stedman,  Efq.  Attorney  at  Law,  Hampton. 


•S  U  B  S  C  Rd  EERS    N-A  M  E  S.     ' 

Rev.  Ezra  Stiles,  S.  T.  D.  L.  L.  D.  frtftdent  of  Yaie  College, New-*; 

Haven. 
Benjamin  Sti!cs,  Jan.  Efq.  Attorney  at  Law,  Woodbury. 
Experience  Storrs,  Efq.  Mansfield. 
Scth  Storrs,  Efq.  Attorney  at  Law,  Addifon,  Vermont. 
A'ionsjah  Strong,  Efq.  Do.  Saliibury. 
Hon.  John  Strong,  Efq.   Chief  Judge  of  the  Court  of  Commoa  FIsas 

for  the  County  of  Addifon,  Vermont. 
Hon.   Jonathan  Sturges,  Efq,    Reprcfentatire  in   Congrefs  from  the 

State  of  Connedicuto 
Heman  Swift,   Efq.  one  of  the  Judges  of  the  Court  of  Common  Pleas 

for  the  County  of  Litchfield,  Cornwal. 
Zephaniah  Swift,  Efq.  Attorney  at  Law,  Windham. 
Colonel  Benjamin  Tallmadge,  Litchfield. 
Peleg  Thomas,  Efq.  Lebanon. 

Hezeklah  Thomfon,  Efq.  Attorney  at  Law,  Woodbury, 
Samuel  Thomfon,  Efq.  MansEeld. 

IfaacTichenor,  Efq.  Attorney  at  Law,  Bennington,  Vermcmt. 
■Elkanah  Tifdale,  Efq.  Attorney  at  Law,  Lebanon. 
William  Townfend,  Efq.  Do.  Colchefter, 
Micah  Tofvnfend,  Efq.  Do.  Bratcleborough,  Vermont. 
Uriah  Tracy,  Efq.  Do.  Litchfield. 
Hon.  Jonathan  Trumbull,   Efq.  Reprefentaiive  in  Congrefs  from  ihe.' 

State  or  Connedicut. 
John  Trumbull,  Efq,  Attorney  at  Law,  Hartford. 
Mr.  David  Trumbull,  Merchant,  Lebanon. 
Captain  Daniel  Tyler,  Brooklyn. 

Daniel  C.  Verplank,  Efq.  Attorney  at  Law,  New-York» 
Mr.  Decius  Wadfworth,  Student  at  Law,  Hartford. 
Marvin  Wait,  Efq.   Attorney  at  Law,  New-London. 
Jofeph  Walker,  Efq.  Do.  Stratford. 
David  Welch,  Efq.  Litchfield, 

Mr.  Samuel  H.  Wheeler,  Student  at  Ljiw,   Litchfield. 
Dyer  White,  .Efq.    Attorney  at  Law,  New  Haven. 
William  Whitman,  Efq.  Do.  Tolland. 
Hon.  William  Williams,  Efq.  Chief  Judge  of  the  Court  of  Gdmmoti 

Pleas  for  the  County  of  Windham,  Lebanon. 
Elifha  Williams,  E'q.  Attorney  at  Law,  Grotcn. 
Ezekiel  Williams,  Efq.  SheriiFof  the  County  of  Hartford. 
John  Williams,  Efq.  Attorney  at  Law,  Weathsrgfield. 
Samuel  Williams,  Efq.  Rutland,  Vermont. 
Afa  Witter,  Efq.  Canterbury. 
His  Hanor  Oliver  V/olcott,  Eiq.  Lieutenant-Governor  of  the  State  cf 

Connedicut,  Licchiield. 
'Oliver  Wolcott,  jun.  Efq.  Comptroller  of  Public  Accounts  for  the  State 

of  Conneflicut,  Hartford. 
Enoch  Woodbridge,  Efq.  Manchefter,  Vermont. 
Samuel  Woodruff,  Efq.  Attorney  at  Law,  Wallingford. 
Williara  Worthington,  Efq.  Saybrook. 
David  Wright,  Efq.  Attorney  at  Law,  New  London. 
Mr.  Elizur  Wright,    Canaan, 


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